No. 01-048 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2002 MT 176 

VIRGINIA CITY, a Municipal corporation, 

and Political Subdivision of the State of Montana, 

Plaintiff and Respondent, 

v. 

GREG OLSEN and PHILLIP MASON, JR., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Madison, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

John P. Poston, Attorney at Law, Helena, Montana 

For Respondent: 

William A. Hritsco, Attorney at Law, Dillon, Montana 

Submitted on Briefs: October 11, 2001 

 Decided: August 8, 2002 

 

Filed: 

__________________________________________ 

Clerk 
2 

Justice Jim Regnier delivered the Opinion of the Court. 

¶1 The town of Virginia City, Montana, brought this action in the 

Montana Fifth Judicial District Court, Madison County, to enjoin 

construction of a structure therein on Lots 11 and 12, Block 201, 

based upon alleged permit violations. The District Court awarded 

summary judgment to Virginia City, permanently enjoined further 

construction on the lots, and ordered that the existing structure 

thereon be removed. Greg Olsen (“Olsen”), the owner of the lots, 

and Phillip Mason, Jr., (“Mason”), the general contractor, appeal 

from the District Court’s December 19, 2000, Judgment. We reverse 

and remand for further proceedings consistent with this Opinion. 

¶2 The following issue is dispositive of the appeal: 

¶3 Did the District Court err in awarding Virginia City summary 

judgment without affording Olsen and Mason a hearing? 

 BACKGROUND 

¶4 In the Spring of 1999, Mason, a general contractor and 

resident of Virginia City, agreed to assist Olsen in constructing a 

personal residence on Lots 11 and 12, Block 201, in Virginia City. 

 To construct a new structure in Virginia City, development and 

site zoning permits are required pursuant to Virginia City’s Design 

and Site Zoning Ordinance (“Ordinance 503"). In May 1999, Mason 

applied for both permits on behalf of Olsen. 

¶5 Upon Mason’s request for permits, Virginia City’s Historic 

Preservation and Enforcement Officer (“HPO”), Chandler Simpkins 

(“Simpkins”), directed Mason to provide a scaled plat indicating 

generally where and how the proposed structure would be situated on 
3 

the lots. In response to Simpkins’ instruction, Mason prepared and 

submitted a drawing showing the dimensions of the structure and the 

proposed setbacks of the structure from Warren and Fairweather 

Streets, the two public streets abutting Olsen’s lots. 

Additionally, Mason submitted two sketches illustrating plans for 

the exterior of the structure. 

¶6 On June 15, 1999, the Virginia City Historic Preservation 

Advisory Committee (“HPAC”) held a meeting to consider Mason’s 

requests for permits. HPAC rejected Mason’s sketch depicting the 

rear of the structure after reviewing his sketches for compliance 

with Ordinance 503, the “Design Review Guidelines for the Town of 

Virginia City, Montana” (“the Guidelines”), and the Virginia City 

Code, Titles 11 and 15 (“the Code”). HPAC supplanted Mason’s 

sketch with its own illustrating the addition of decking on the 

rear of the structure and different windows. After visiting the 

lots and amending Mason’s submitted sketch, HPAC approved the 

permits. As amended, the permit applications were approved by the 

Town Council on June 17, 1999. Mason commenced construction after 

receiving approval from the Town Council. 

¶7 On or about July 26, 1999, residents of Virginia City orally 

complained that the structure was not in compliance with setback 

requirements. On August 3 and August 4, 1999, HPO, Carl Donahue 

(“Donahue”), investigated alleged setback violations by measuring 

the setback of the structure from Warren Street. Thereafter, 

Donahue advised Mason that he was allegedly in violation of setback 

requirements. On August 4, 1999, Olsen’s neighbors submitted a 
4 

written complaint to the Virginia City Board of Adjustments stating 

that the structure did not appear to meet setback requirements. 

¶8 On August 11, 1999, Donahue sent a written request to Mason to 

immediately cease construction. On August 13, 1999, the Town 

Council sent a letter to Olsen requesting that construction cease 

and that the parties meet to seek a resolution. 

¶9 Virginia City commissioned a survey to measure the setbacks 

and the height of the structure. David Bowman (“Bowman”) conducted 

the survey on August 21 and August 29, 1999. 

¶10 On August 25, 1999, after obtaining the results of the survey, 

the Town Council revoked the building permits and sent notices to 

Olsen and Mason on August 26, 1999, stating that Virginia City was 

seeking an injunction to prevent further construction on the lots. 

 On September 2, 1999, Virginia City filed a complaint and 

application for a preliminary injunction in the District Court 

against Olsen, as owner, and Mason, as Olsen’s agent. The court 

held a show cause hearing on Virginia City’s application for a 

preliminary injunction in Dillon, Montana, on September 9, 1999, 

and in Virginia City on September 14, 1999. On September 15, 

1999, the District Court entered its Findings and Order granting 

Virginia City a preliminary injunction precluding further 

construction on the structure. 

¶11 On April 27, 2000, Virginia City filed a motion for summary 

judgment. On May 1, 2000, Olsen and Mason filed a cross-motion for 

summary judgment. On October 20, 2000, the District Court entered 

its Findings and Order granting summary judgment to Virginia City. 
5 

 On October 24, 2000, Olsen and Mason filed a motion to vacate the 

court’s October 20, 2000, Order pending the completion of briefing 

and the filing of transcripts. Mason additionally filed a motion 

that same day requesting oral argument on the parties pending 

summary judgment motions. Shortly thereafter, the District Court 

stayed its October 20, 2000, Order and deemed oral argument 

unnecessary. On November 20, 2000, the District Court entered its 

Findings and Order reaffirming its award of summary judgment to 

Virginia City. 

¶12 Judgment was entered by the court on December 19, 2000, 

enjoining further construction and ordering the removal of the 

structure. Olsen and Mason appeal. 

STANDARD OF REVIEW 

¶13 We review discretionary trial court rulings for an abuse of 

discretion. See Linn v. City County Health Dept., 1999 MT 235, ¶ 

6, 296 Mont. 145, ¶ 6, 988 P.2d 302, ¶ 6 (citation omitted). Since 

we have previously held that a hearing is not necessary prior to 

granting summary judgment in extraordinary circumstances, we will 

review a district court’s decision to deny such hearing for an 

abuse of discretion. See Linn, ¶ 6. 

DISCUSSION 

¶14 Did the District Court err in awarding Virginia City summary 

judgment without affording Olsen and Mason a hearing? 

¶15 Summary judgment is only proper when there are no issues of 

material fact revealed in the pleadings, depositions, answers to 

interrogatories, admissions on file, and affidavits, and the moving 
6 

party is entitled to judgment as a matter of law. Rule 56(c), 

M.R.Civ.P. Under Rule 56(c), M.R.Civ.P., “a hearing is 

contemplated from which the district court will consider not so 

much legal arguments, but rather whether there exists genuine 

issues of material fact.” Cole v. Flathead County (1989), 236 

Mont. 412, 418, 771 P.2d 97, 101. Therefore, we have held that in 

the ordinary case the parties have a right to a summary judgment 

hearing unless the hearing is explicitly waived. Linn, ¶ 8. We 

stated in Cole, 236 Mont. at 418, 771 P.2d at 101, that: 

In view of the language of Rule 56(c), and having in mind 

that the granting of such a motion disposes of the action 

on the merits, with prejudice, a district court may not, 

by rule or otherwise, preclude a party from requesting 

oral argument, nor deny such a request when made by a 

party opposing the motion unless the motion for summary 

judgment is denied. 

¶16 Nevertheless, we have recognized that “[t]here may be an 

occasion when under the law and the facts adduced, the movant would 

be so clearly entitled as a matter of law to a summary judgment 

that a district court might by order dispense with the necessity of 

a hearing.” Cole, 236 Mont. at 419, 771 P.2d at 101. Such an 

order was not presented to us in this case, as the court failed to 

specify the grounds underlying its summary judgment ruling. 

¶17 Pursuant to Rule 52(a), M.R.Civ.P.: 

[A]ny order of the court granting a motion under Rules 12 

or 56 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 this may 

be done in the body of the order or in an attached 

opinion. [Emphasis added.] 

¶18 In its September 15, 1999, Order the court stated: 
7 

The construction seemed to violate the setback and height 

restrictions as well as window requirements. 

. . . . 

The defense was a mixture of multiple contentions ranging 

from an attack on the plat of the town site, estoppel, selective prosecution, validity of ordinances and 

policies, constitutional issues, procedures for 

measurements, among others. The Court finds generally 

for the Town and against the Defendants on each of the 

defenses, at least at this preliminary stage. 

¶19 The court adopted its September 15, 1999, findings in its 

October 20, 2000, Order. Subsequently, the court stated in its 

November 20, 2000, Order that: 

If as Defendants now claim there is some “confusion” as 

to the various provisions of the zoning ordinance, why 

didn’t Defendants apply for a variance as suggested not 

only by the town authorities but repeatedly by the Court. 

 Defendants stonewalling tactics and insistence on 

pursuing senseless and expensive litigation is the 

anomaly in this case. 

¶20 We conclude that this language fails to specify with 

sufficient particularity the rationale underlying the court’s 

ruling, particularly the defenses raised in Olsen and Mason’s 

cross-motion for summary judgment. Therefore, we hold that the 

District Court did not comply with Rule 52(a), M.R.Civ.P., in its 

November 20, 2000, Order granting Virginia City summary judgment. 

¶21 Moreover, we point out that the court acknowledged in its 

September 15, 1999, Order that Olsen and Mason were entitled to an 

evidentiary hearing. However, in its October 20, 2000, Order and 

in its November 20, 2000, Order the court deemed a hearing 

unnecessary based on the evidence it adduced from the hearing it 

conducted on Virginia City’s motion for a preliminary injunction. 

We note that at the hearing held on September 9 and September 14, 
8 

1999, the parties presented extensive testimony, witnesses, and 

exhibits without the benefit of full discovery and responsive 

pleading to Virginia City’s amended complaint. Since discovery is 

seldom completed prior to the time preliminary injunction hearings 

are held, we have repeatedly advised district courts that when 

granting temporary relief by injunction, it is not the province of 

the court to determine matters that may arise during a trial on the 

merits. See Knudson v. McDunn (1995), 271 Mont. 61, 65, 894 P.2d 

295, 298 (citing Porter v. K & S Partnership (1981), 192 Mont. 175, 

183, 627 P.2d 836, 839). 

¶22 In Porter, 192 Mont. at 183, 627 P.2d at 840, we stated: 

In granting temporary relief by injunction, courts of 

equity should in no manner anticipate the ultimate 

determination of the questions of right involved. 

Rather, the court should decide merely whether a 

sufficient case has been made out to warrant the 

preservation of the property or rights in status quo

until trial, without expressing a final opinion as to 

such rights. An applicant need not make out such a case 

as would entitle him to final judgment on the merits. 

[Citations omitted]. 

¶23 Although the court stated in its October 20, 2000, Order that 

it considered the entire record, including extracts from 

depositions, in addition to the evidence adduced at the hearing 

held on September 9 and 14, 1999, it did not reference in either 

its October 20, 2000, Order or its November 20, 2000, Order the 

affidavits filed by Olsen and Mason, most notably that of Donahue. 

 Consequently, in light of the court’s noncompliance with Rule 

52(a), M.R.Civ.P., we see no reason in this case to depart from the 

general rule that a party opposing a summary judgment motion is 

entitled to a hearing in order to establish genuine issues of 
9 

material fact pursuant to Rule 56(c), M.R.Civ.P. Therefore, we 

hold that the District Court abused its discretion when it granted 

Virginia City summary judgment without affording Olsen and Mason a 

hearing. 

¶24 In response to Justice Trieweiler’s dissent, we point out that 

Olsen and Mason allege within the first issue raised in their 

opening brief that the District Court erred in denying their motion 

for a summary judgment hearing. Specifically, they contend: 

The District Court also denied Olsen/Mason’s motion for a 

hearing on the motions for summary judgment. Rule 56(c) 

clearly contemplates a hearing on such motions. In this 

case in particular, we submit that failure to hold such a 

hearing is error. Cole v. Flathead Co., 236 Mont. 412, 

771 P.2d 97, 46 St. Rep. 469 (1980) [sic]. 

Accordingly, we conclude Olsen and Mason are entitled to a further 

evidentiary hearing prior to entry of a determination of the merits 

in this case since the only hearing afforded the parties took place 

before discovery was conducted or responsive pleadings were filed. 

 

¶25 Reversed and remanded for further proceedings consistent with 

this Opinion. 

/S/ JIM REGNIER 

We Concur: 

/S/ W. WILLIAM LEAPHART 

/S/ PATRICIA COTTER 

/S/ JAMES C. NELSON 
10 

Justice Terry N. Trieweiler dissenting. 

¶26 I dissent from the majority Opinion which, as I understand it, 

is based on the District Court's failure to hold a hearing before 

granting Virginia City's motion for summary judgment. 

¶27 First, I would note as a practical matter that the District 

Court held two hearings at which all the arguments that could have 

been made at a summary judgment hearing were made. Second, and 

more importantly, the District Court's failure to hold a hearing 

was not an issue that was even raised on appeal by the Defendants. 

 Rule 23(2), M.R.App.P., requires that issues being presented for 

the Court's consideration be set forth in the statement of issues. 

 In their statement of issues presented for review, the Defendants' 

brief set forth the following: 

Issue 1. Did the District Court err by failing to 

enter Findings of Fact and Conclusions of Law with 

sufficient particularity to apprise the parties and this 

Court of the grounds for its grant of an injunction? 

Issue 2. Did the District Court err in granting 

Summary Judgment for the plaintiff? 

Issue 3. Did the District Court err in not entering 

Summary Judgment for Olsen and Mason? 

¶28 The majority cites language in the last paragraph of the 

argument in support of Issue 1 as support for its consideration of 

the hearing issue. However, that language, at best an 

afterthought, has nothing to do with Issue 1 as it was framed and 

Defendants' brief is full of random, unconnected arguments. There 

was no way to reasonably respond without limiting the response to 

the issues that were identified. Furthermore, the Defendants were 

perfectly happy to have this Court enter summary judgment for them 
11 

in spite of the fact that no hearing was held. Apparently, their 

theory was that they were entitled to judgment as a matter of law 

without the need for a hearing. 

¶29 I would affirm the District Court on all issues raised on 

appeal. Rule 52(a), M.R.Civ.P., merely requires that a district 

court specify the grounds for summary judgment orders "with 

sufficient particularity as to apprise the parties and the 

appellate court of the rationale underlying the ruling. . . ." 

There is no question in my mind regarding the rationale for the 

District Court's summary judgment order. Following a hearing and 

the presentation of evidence, the District Court stated in its 

September 15, 1999, Order, that the Defendants violated the setback 

and height requirements established by city ordinance and the 

window requirements on which the Defendants' cite/zoning permit and 

development permit were conditioned. 

¶30 Furthermore, the District Court noted that it had considered 

the Defendants' affirmative defenses and at that time found 

generally for the City. That was easy, since the Defendants' 

affirmative defenses of waiver, estoppel, latches and failure to 

exhaust administrative remedies had no basis in fact. 

¶31 While it is true that the merits of a case should not be 

decided on the basis of a hearing to determine whether temporary 

injunctive relief should be granted, there was nothing wrong with 

the District Court incorporating its preliminary findings by 

reference after considering further deposition testimony, 

affidavits and arguments of the parties. That is all the District 
12 

Court did in its summary judgment order dated October 20, 2000. 

Apparently, the Defendants did not disagree that the case was ready 

for disposition by summary judgment at that point in time. The 

Defendants made their own motion for summary judgment based on the 

state of the record. 

¶32 In its October 20, 2000, Order the Court stated: 

The Court has considered the entire record including 

extracts from depositions and the evidence adduced at the 

order to show cause hearing held on September 9 and 14, 

1999. From the entire record the Court now makes what it 

determines to be relevant: 

FINDINGS AND CONCLUSIONS

1. The Court hereby adopts by this reference its 

Findings and Order of September 15, 1999. 

. . . . 

3. The evidence already adduced establishes without 

question that the Defendants constructed a building in 

violation of the permit issued therefor and contemplated 

further construction in violation of the issued permit 

and the known historic preservation policy. The 

violations are obvious and for the most part admitted. 

¶33 The District Court's judgment on the merits was correct. 

Virginia City is a community of great historical significance to 

all of Montana. In order to preserve its historical integrity, it 

has adopted Ordinance No. 503 which requires cite/zoning permits 

and development permits. Prior to issuance of the permits, an 

applicant must assure compliance with all relevant ordinances. 

¶34 Virginia City's ordinance establishes a minimum setback 

requirement of fifty feet from the center line of the adjoining 

street and twenty-five feet from the lot line. The Defendants' 

property was thirty-one feet from the center line of the adjoining 
13 

street as plotted and thirty-eight feet from the center line of the 

traveled way. It was only six feet from the lot line. Whether the 

distance is measured from the street passing by the front of the 

house or the side of the house, the Defendants' construction was 

clearly in violation of the setback requirements established by the 

City's ordinance. 

¶35 The City's ordinance also limits the height of new 

construction to twenty-five feet from the top of the foundation to 

the ridge line of the roof. The Defendant's property was 27.8 feet 

high and violated both the ordinance and the permits which were 

issued to them. 

¶36 As conditions to the permits which were issued, Defendants 

were required to build their house in a configuration and size 

consistent with a historical design of homes in Virginia City. 

They were also required to design and locate windows in an 

architecturally acceptable manner. They did not comply with any of 

these requirements. There are no questions of fact regarding their 

failure to comply. 

¶37 Section 27-19-102, MCA, provides in relevant part that a final 

injunction may be granted to prevent the breach of an obligation 

existing in favor of the applicant where "(1) pecuniary 

compensation would not afford adequate relief; . . . ." 

¶38 The facts presented by this case are a classic example of a 

situation in which compensation would not afford adequate relief. 

The historical value of places like Virginia City is priceless. 

Once it is compromised, it cannot be restored. Defendants' conduct 
14 

is a classic example of people coming to a place because of its 

attractiveness and then destroying the qualities that brought them 

there for their own self-indulgence. After reviewing the record in 

this case, I agree with the observation of the attorney for 

Virginia City when he commented that: 

The owners choose to purchase a lot and to build a house 

in a Historic Residential District in a town which is a 

jewel–a state and national treasure. What they have 

constructed to date is a hulking, rectangular box which 

seriously violates numerous conditions of its permit and 

which looms over the narrow Virginia City valley as an 

incredible eyesore. Each of the violations is serious, 

and to combine defective violations is nothing short of 

egregious. 

¶39 The Defendants' construction violates Virginia City ordinances 

establishing setback and height requirements. It violates the 

permit pursuant to which it is being constructed by its design, its 

size, its shape, and fenestration requirements. No amount of 

litigation and expense will change these facts. Because of these 

facts, the construction jeopardizes the architectural and 

historical integrity of a priceless resource to the state of 

Montana and should be torn down without further delay or 

litigation. 

¶40 I would affirm the judgment of the District Court and order 

that the Defendants do so. 

¶41 For these reasons, I dissent from the majority Opinion. 

/S/ TERRY N. TRIEWEILER