DA 07-0407

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 292N

LINDA METZGER, individually and on behalf

of the West McIver Road Neighbors, an

Association of Concerned Citizens,

 Plaintiffs and Appellees,

 v.

PAM POLEJEWSKI and MICHAEL HANSON,

 Defendants and Appellants.

APPEAL FROM: District Court of the Eighth Judicial District,

In and For the County of Cascade, Cause No. BDV 2005-1147

Honorable Julie Macek, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Michael Lee Hanson, Pam Polejewski (Pro Se), Libby, Montana

For Appellee:

Patrick F. Flaherty, Attorney at Law, Great Falls, Montana

Submitted on Briefs: July 23, 2008

 Decided: August 19, 2008

Filed:

__________________________________________

Clerk

August 19 2008
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Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal 

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

Court and its case title, the Supreme Court cause number, and disposition shall be 

included in this Court’s quarterly list of noncitable cases published in the Pacific 

Reporter and Montana Reports.

¶2 This is an appeal by Pam Polejewski and Michael Hanson (collectively, 

“Appellants”) from the District Court’s order granting summary judgment in favor of 

Linda Metzger. We affirm.

¶3 Beginning in 1998, Polejewski and, eventually, Hanson, began to acquire a variety 

of animals at their residence at 77 Wexford Lane in Cascade County. They eventually 

accumulated nearly two hundred animals on the property. In 1999 and 2000, Appellants’ 

neighbors complained about persistent barking. The Cascade County Sheriff’s Office

eventually investigated a complaint that there were unwatered horses on the property. 

Veterinarians subsequently examined the animals on the property (including one hundred 

and thirty-eight dogs, eighteen horses, and seventeen cats) and determined that the 

animals were being kept in an unsatisfactory condition. The dogs had not previously 

received adequate veterinary care. The property was littered with carcasses, and horses 

were being fed moldy hay.

¶4 Metzger eventually filed suit against Appellants to abate a public nuisance. After 

reviewing the record, including a DVD of the premises filmed by the Cascade County 
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Sherriff’s Office, and listening to oral argument from both parties, the court granted 

summary judgment in favor of Metzger. It ordered that “neither Ms. Polejewski nor Mr. 

Hanson shall own, possess, or care for any animal, including mammals, fish, birds and 

reptiles, nor have any animal, including mammals, fish, birds and reptiles at 77 Wexford 

Lane.”

¶5 Appellants present the following issues for review by this Court:

1. Did the District Court abuse its discretion when it granted summary judgment 

in favor of Metzger?

2. Did the District Court abuse its discretion and err when it admitted evidence

obtained from an illegal search and seizure?

¶6 The thrust of Appellants’ arguments under Issue 1 appears to be that the District 

Court judge was biased and should have recused herself; yet, they never made such a 

motion in the District Court. While Appellants also appear to dispute that their animals 

constituted a nuisance, they do not contest on appeal that there were approximately two

hundred animals living on their property. With respect to Issue 2, Appellants maintain 

that the DVD filmed by the Cascade County Sheriff’s Office was the product of an illegal 

search and seizure. The DVD, however, was voluntarily produced by Appellants during 

discovery.

¶7 We are willing to make accommodations for pro se litigants by relaxing the 

technical requirements which do not impact fundamental bases for appeal. Appellants, 

however, still have the burden of establishing error by a district court. See State v. 

Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26. Appellants’ brief is 
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replete with various factual statements and contentions which are appropriately resolved 

in a trial court and not by this Court within the context of an appeal. Moreover, contrary 

to M. R. App. P. 12(1)f., Appellants cite no legal authority in support of their position 

and instead rely on bare, unsubstantiated allegations of due process violations. 

Accordingly, we conclude that Appellants have failed to meet their burden of 

demonstrating error by the District Court.

¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of 

our 1996 Internal Operating Rules, as amended in 2003, which provides for 

memorandum opinions. Having reviewed the record in this case, we determine that the 

District Court did not err in granting Metzger’s motion for summary judgment, as no 

genuine issues of material fact existed, and because Metzger was entitled to judgment as 

a matter of law. It is manifest on the face of the briefs and the record before us that this 

appeal is without merit because the legal issues are clearly controlled by settled Montana 

law which the District Court correctly interpreted.

¶9 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ PATRICIA COTTER

/S/ JOHN WARNER

/S/ JIM RICE