No. 96-326 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

BLAZE CONSTRUCTION, 

Plaintiff 

v. 

INC., 

and Appellant, 

GLACIER ELECTRIC COOPERATIVE, INC., Nr)V 2 6 19% 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable Marc G. Buyske, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Robert G. Olson; Frisbee, Moore & Olson, 

Cut Bank, Montana 

For Respondent: 

Larry Epstein; Werner, Epstein & Johnson, 

Cut Bank, Montana 

For Amicus: 

Kathleen Fleury, Blackfeet Legal Department, 

Browning, Montana (for Blackfeet Tribe) 

Jeanne S. Whiteing; Whiteing & Smith, Boulder 

Colorado (for Blackfeet Tribe) 

Filed: 

Submitted on Briefs: November 14, 1996 

Decided: November 26, 1996 

Clerk/ 
Justice W. William Leaphart delivered the Opinion of the Court. 

Appellant, Blaze Construction (Blaze) filed suit against 

Glacier Electric Cooperative (Glacier) alleging breach of contract 

for the failure to pay Blaze the sum of $36,000 on a contract 

concerning the construction of 24 homes on the Blackfeet 

Reservation. Glacier moved to dismiss for failure to join an 

indispensable party and for lack of jurisdiction of the parties. 

The Blackfeet Tribe, which is litigating breach of contract and 

recoupment claims against Blaze in federal district court, moved to 

intervene for the purpose of contesting jurisdiction. The District 

Court granted Glacier's motion to dismiss for failure to join the 

Blackfeet Tribe as an indispensable party. Blaze appeals from the 

order of dismissal. We affirm. 

Background 

Blaze is a corporation existing under the laws of the 

Blackfeet Tribe and authorized to do business in the State of 

Montana. Glacier is a rural electric cooperative with its 

principal office in Cut Bank, Montana. 

In conjunction with the Bonneville Power Administration, 

Glacier administers a conservation incentive program known as Super 

Good Cents. Under this program, homes built to meet certain energy 

conservation specifications qualify the builder or the owner to a 

payment of reimbursement for additional weatherization costs of up 

to $1,500 per home. Depending upon the circumstances and the 

agreement between the parties, Glacier has in the past made these 

payments to the owner of,a new home, or, in the alternative, to the 

2 
builder. Usually, the builder or contractor and the owner of the 

residence reach agreement whereby the owner receives some form of 

credit for the Super Good Cents expense incurred by the builder in 

new construction. 

In June of 1994, Blaze contracted with Glacier to construct 25 

homes in conformance with Super Goods Cents standards. All the 

homes constructed pursuant to this contract were constructed on the 

Blackfeet Reservation and are owned by the Tribe. Glacier and 

Blaze are the only signatories to this contract. Both Blaze, as 

the builder, and the Tribe as the owner, of 24 of the 25 certified 

new homes, claim reimbursement of the funds due under the incentive 

program. 

Glacier does not dispute that Blaze completed its obligation 

to build the homes nor does it dispute that it has not paid 

incentive money to Blaze. Rather, Glacier moved to dismiss the 

suit arguing that, since the Tribe had made a demand upon Glacier 

for the incentive monies, the Tribe, as the owner of the homes, was 

an indispensable party to the litigation. The Tribe moved to 

intervene for the sole purpose of having the matter dismissed for 

lack of jurisdiction over the Tribe. Blaze concedes that if the 

Tribe is an indispensable party, the complaint has to be dismissed 

since the court has no jurisdiction over the Tribe. Blaze contends 

that the Tribe is not an indispensable party since the Tribe was 

not a party to the Blaze/Glacier contract. Blaze argues that only 

those entities which are in privity can be considered 

indispensable. 

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Discussion 

In considering a motion to dismiss on the ground that an 

indispensable party is absent, "the court is given discretion to 

determine whether the action will proceed or will be dismissed." 

Mohl v. Johnson (1996), 275 Mont. 167, 169, 911 P.2d 217, 219. In 

reviewing such discretionary rulings we apply an "abuse of 

discretion standard." Montana Rail Link v. Byard (1993), 260 Mont. 

331, 337, 860 P.2d 121, 125. 

Resolution of this appeal hinges upon application of Rule 19, 

M.R.Civ.P., which states: 

Rule 19(a). Persons to be joined if feasible. A 

person who is subject to service of process shall be 

joined as a party in the action if (1) in the person's 

absence complete relief cannot be accorded among those 

already parties, or (2) the person claims an interest 

relating to the subject of the action and is so situated 

that the disposition of the action in the person's 

absence may (i) as a practical matter impair or impede 

the person's ability to protect that interest or (ii) 

leave any of the persons already parties subject to a 

substantial risk of incurring double, multiple, or 

otherwise inconsistent obligations by reason of the 

claimed interest. If the person has not been so joined, 

the court shall order that the person be made a party. 

If the person should join as a plaintiff but refuses to 

do so, the person may be made a defendant, or, in a 

proper case, an involuntary plaintiff. If the joined 

party objects to venue and joinder of that party would 

render the venue of the action improper, that party shall 

be dismissed from the action. 

Rule 19 (b). Determination by court of whenever 

joinder not feasible. If a person as described in 

subdivision (a) (1) - (2) hereof cannot be made a party, the 

court shall determine whether in equity and good 

conscience the action should proceed among the parties 

before it, or should be dismissed, the absent person 

being thus regarded as indispensable. The factors to be 

considered by the court include: first, to what extent a 

judgment rendered in the person's absence might be 

prejudicial to the person or those already parties; 

second, the extent to which, by protective provisions in 

4 
the judgment, by the shaping of relief, or other 

measures, the prejudice can be lessened or avoided; 

third, whether a judgment rendered in the person's 

absence will be adequate; fourth, whether the plaintiff 

will have an adequate remedy if the action is dismissed 

for nonjoinder. 

In interpreting Rule 19, this Court has held that, in the 

interests of judicial economy, all parties claiming an interest in 

the subject of the suit should be joined. Dagel v. City of Great 

Falls (19911, 250 Mont. 224, 239, 819 P.2d 186, 195. 

Under Rule 19, M.R.Civ.P., a court must first determine under 

Rule 19(a) whether the absent party is necessary to the action, 

that is, whether complete relief can be accorded without the absent 

party's participation and, second, if the absent party is necessary 

but joinder is not possible, whether the absent party is 

indispensable under Rule 19(b), that is, whether in "equity and 

good conscience the action should proceed . . or should be 

dismissed. . .I' m, 911 P.2d at 219. 

Blaze relies on our decision in Gambles v. Perdue (1977), 175 

Mont. 112, 572 P.2d 1241, for its argument that a person who is not 

a party to a contract is not an indispensable party to a suit 

involving that contract. In Gambles, a retail carpeting store sued 

John Perdue on contracts covering the purchase and installation of 

carpeting in Perdue's residence. After the installation of the 

carpeting, Perdue's wife obtained a divorce in which she was 

awarded the residence in question and was made solely responsible 

for all indebtedness on the property. Gambles, 572 P.2d at 1242. 

In response to Gambles' complaint, John Perdue contended that all 

proper parties were not before the court; that his ex-wife was 

5 
responsible because she had been awarded the property in the 

divorce proceeding. Gambles, 572 P.2d at 1243. The court entered 

judgment for him on that basis. Gambles appealed. We vacated the 

dismissal for the reason that a contracting obligee cannot be 

deprived of recourse against the contracting obligor (John Perdue) 

by a substitution of debtors without the obligee's, (Gambles) 

consent. Thus John Perdue remained liable on his contract despite 

the provisions of the divorce decree. We held that Anna, John's 

ex-wife, was not a proper party because she was not a party to the 

contract. Gambles, 572 P.2d at 1243. Gambles is clearly 

distinguishable from the present case. Gambles did not involve an 

interpretation of Rule 19. Further, the present case does not 

involve a substitution of an obligee. Rather, it involves a 

question of whether the obligor (Glacier) may, in the absence of 

joinder, be subject to multiple obligations. 

In the present case, the District Court noted that Blaze 

conceded that proceeding to judgment in state court without the 

Tribe as a party will most likely subject Glacier to further 

litigation with the Tribe over the same monies in another forum. 

Rule 19(a), M.R.Civ.P., specifically requires joinder of persons 

who claim an interest in the action and whose absence may "leave 

any of the persons already parties subject to a substantial risk of 

incurring double, multiple, or otherwise inconsistent obligations 

11 

. . . We agree with the court's conclusion that, given the 

Tribe's claimed interest, Glacier is in substantial risk of 

incurring multiple and inconsistent obligations. The court 

6 
correctly concluded that the Tribe is a necessary party to the 

litigation. 

Having concluded that the Tribe is a necessary party, the next 

inquiry is whether, "in equity and good conscience" the matter 

should proceed without the Tribe or should be dismissed, the Tribe 

being thus regarded as indispensable. Rule 19(b), M.R.Civ.P. In 

making this determination, the court is directed to consider the 

following factors: 

1. To what extent a judgment rendered in the person's 

absence might be prejudicial to the person or those already 

parties; 

2. The extent to which, by protective provisions in the 

judgment, by the shaping of relief, or other measures, the 

prejudice can be lessened or avoided; 

3. Whether a judgment rendered in the person's absence will 

be adequate; 

4. Whether the plaintiff will have an adequate remedy if the 

action is dismissed for nonjoinder. 

Rule 19(b), M.R.Civ.P. 

Blaze contends that if this matter is dismissed for failure to 

join the Tribe, Blaze will be denied the right to proceed in a 

state court forum. In this regard, we note that, although Blaze 

filed three briefs in this appeal and surprisingly did not rely on 

State ex rel. Drum v. District Court (1976), 169 Mont. 494, 548 

P.2d 1377, the holding in Drum merits some discussion. Drum 

involved a suit against David Drum by First National Bank to 
collect on promissory notes. Drum moved to dismiss on the ground 

that the suit was not prosecuted in the name of the real party in 

interest and for failure to join an indispensable party plaintiff, 

i.e., Chase Manhattan Bank of New York; an entity which could not 

be sued in the courts of Montana under 12 U.S.C. § 94. Drum -I 548 

P.2d at 1379. In refusing to issue a writ of supervisory control 

to dismiss for nonjoinder, we noted that dismissal would leave 

First National with no remedy in the courts of its own state to 

collect the money it loaned to the Drums. -, Drum 548 P.2d at 1382. 

Although it would appear that this same concern for a state 

court forum would militate against dismissing Blaze's suit for 

nonjoinder of the Tribe, there are a number of aspects of the 

present suit which distinguish it from the Drum matter. Drum 

sought to dismiss for nonjoinder of Chase Manhattan. Chase's only 

tie to the transaction was that it had a participation agreement 

with First National. Chase's absence from the litigation would not 

impair its ability to enforce its participation agreement with 

First National. Furthermore, judgment in the case would not have 

subjected Drum to the risk of multiple or otherwise inconsistent 

obligations since Drum's rights and liabilities would be finally 

concluded in the context of the Drum/First National Bank promissory 

note agreements. We noted that it was no concern of Drum what 

First National did with the proceeds of the repaid loan. -, Drum 548 

P.2d at 1381. In contrast, Glacier's rights and obligations with 

regard to the incentive monies will not be finally concluded in the 

context of the Glacier/Blaze contract. Rather, in the absence of 

8 
joinder of the Tribe, Glacier will be at risk of multiple and 

inconsistent obligations. 

Recognizing that it did not have any jurisdiction over the 

Tribe, the District Court concluded that it would be unable to 

fashion any meaningful relief which would address the claims of the 

Tribe and avoid the risk of further litigation to Glacier. 

Furthermore, the court recognized that there are two other forums, 

the Tribal Court and the United States District Court, which have 

jurisdiction over all three entities. 

We hold that the Blackfeet Tribe is a necessary party over 

which the District Court has no jurisdiction. Thus, the District 

Court did not abuse its discretion in dismissing Blaze's claim for 

nonjoinder of an indispensable party. Affirmed. 

We concur: /