No. 13686
IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

HENRY A. LINK et al., Plaintiffs and Respondents,

THE STATE OF MONTANA, Acting by and through the DEPARTMENT OF FISH AND GAME et al., Defendants and Appellants.

Appeal from: District Court of the First Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Clayton Herron argued, Helena, Montana For Respondents: Hutton, Sheehy and Cromley, Billings,Montana John C. Sheehy argued, Billings, Montana

Submitted: May 25, 1977 ~ecided: 

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Filed: 

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### )gpl-Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order granting partial summary judgment inan action for specific performance of contract or damages filed inthe districtcourt, Lewis and Clark County. Prior toJanuary 1, 

### 1950 plaintiff had a concession to operate a mountain railroad and tram in Lewis and Clark Caverns State Park. The tram took visitors from a parking lotup a mountainside tothe entrance of the Lewis and Clark Caverns. In 

### 1950 the State Park Commission (appellant Fish and Game Commission is the successor agency controlling stateparks, formerly under the jurisdiction of the State Park commission) entered intoan agreement with Link Bros., Concessionaires, plaintiff and respondent herein, whereby the State Park Commission took over the operation and maintenance of the railroad and tram. That agreement provided: "The Commission hereby agrees totake over the operation and maintenance of' the said mountain railroad, alsoknown and designated as a hoist and tramway, at Lewis and Clark Caverns State Park, Montana, as of January 1, 1950, and to operate and maintain same at its own expense. The equity of saidConcessionaires inthe business of said mountain railroad as provided in said agreement of June 

### 15, 1946, shallbe recognized by the payments tothe concessionaires by the saidCommission the following amounts* 

## * *.I1 The agreement alsoprovided: "Said Commission furtheragrees tooperate said mountain railroad, 

### tram and hoist, and handle the visitingpublic thereon in such a way as to encourage saidpublic touse the other facilities o$ the Concessionaries at saidLewis and Clark Caverns State Park, and tooperate said railroad ina manner that is beneficial tothe business of the Concessionaires* 

## * *.I1 Plaintiff's complaint alleges that the state of Montana, through its Fish and Game Commission, has refused tooperate and maintain saidrailroad, as 

### it agreed todounder the contract, and has disbanded and set aside the equipment and machineryrelating tothe railroad. Based upon affidavits and answers to interrogatories, plaintiff concessionaire made a motion for a partial summary judgment tothe effect that the state of Montana, through its Fish and Game Commission, had breached, was now in breach, and intended inthe future tobreach its contractual duty tooperate and maintain the mountain railroad and tram. The districtcourt granted the partial summary judgment on November 

### 4, 1976. The operative language of the court's order forpartial summary judgment is: "IT IS

### HEREBY ORDERED that plaintiffs be and are hereby granted partial summary judgment tothe effect that the defendants breached, do now breach, and intend in the future tobreach their contractual duty tooperate and maintain the mountain railroad and 

### tram in Uwisand Clark State Caverns; and the Court hereby reserves the further decision whether the defendants are entitledtoany relief by virtue of their amended and supplemental answer and counterclaim, and, if plaintiffs are entitledto relief, whether suchrelief shallbe by specific performance orby compensation indamages. " Respondent Concessionaire moved todeny the Comrnissionts appeal on three grounds: 1. That the order is non-appealable because it is interlocutory incharacter and not a finaljudgment. 2. That the appeal is frivolous and taken for the purpose of delay only. 

### 3. That the notice of appeal was not timely. In view of this Court's holding that the order in this

case granting partial summary judgment is not appealable, we will not consider the second and third grounds. Rule 56, M.R.Civ.P., grants the districtcourt power to enter summary judgment. Subdivisions (c) and (d) thereof provide:

I'(c) Motion and Proceedings Thereon. The motion shallbe served at least 10 days before the time fixed for the hearing. The adverse party prior tothe day of hearingmay serve opposing affidavits. The judgment sought shallbe rendered forthwith if the pleadings, depositions, answers tointerrogatories,and admissions on file, together with the affidavits, if any, show that there is no genuine issue as toanymaterial fact and that the moving party is entitledto

### a judgment as 

### a matter of 

### law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as tothe amount of damages. "(d) Case Not Fully Adjudicated on Motion. If on motion under thisrule judgment is not rendered upon the whole case or for allthe relief asked and a trial is necessary, the court atthe hearing of the motion, by examining the pleadings and the evidence before 

### it and by interrogating counsel, shall if practicable ascertainwhat material facts existwithout substantial controversy and what material facts are actually and ingood faith controverted. It shallthereupon make an order specifying the facts that appear without substantial controversy, including the extent towhich the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shallbe deemed established, and the trialshallbe conducted accordingly. 11 Under the provisions of Rule 56, M.R.Civ.P., this Court has held that a summary judgment may be interlocutory incharac' and that the trialcourt can reserve for future decision or trii such other matters as are incontroversy and that the courtmay consider such further proceedings as are just. In Schultz v. Adams, 

### 161Mont. 463, 466, 507 P.2d 530, thisCourt noted, citingfrom Russell v. Barnes Foundation, 136 F.2d 654, decided on the federalrule identical toMontana's Rule 56, M.R.Civ.P.:

"I* 

## * * The motion must be granted since the order appealed from, although it determines the liability of the defendant tothe plaintiff, willnot become a finaladjudication of the controversybetween them until the damages towhich the plaintiff is entitledhave been assessed. See also: Tye v. Hertz Drivurself Stations, 

### 173 F.2d 

### 3. The specific authority forentering a partial summary judgment on the issue of liability alone, leaving the issue of damages for trial, is contained inRule 56(c)(d), M.R.Civ.P.,which designates this type of summary judgment as "interlocutory~ incharacter". The appeal is therefore premature. I For the above reasons the motion todismiss the appeal 

# ~ is granted. The appeal is ordered dismissed. I

We Concur: 

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- CHief Justice