### No. 83-208 IN THE SUPREME COURT OF THE STATE OF MONTANA 1983



### MYRASMUSSEN and PAULINERASMUSSEN, Plaintiffsand Appellants,

LARRY C. BENNETT,CLIFFORD HARDEN, DANIEL P. JAIIIES, DONALD WHITING, and NELSON DAVES, Defendantsand Respondents.

APPEAL FROM: District Court of the Ninth Judicial District, Inand for the County of Toole, The Honorable JohnM. 

### PlcCZ-mvel, Judge presiding.

COUNSEL OF RECORD: ForAppellants: James C. 

### Bartlett argued;Hash, Jellison,O'Brien and Bartlett,Kalispell,Montana

For Respondents: 

### P. Jbhn'jg: Paul argued;Alexander & 

### Baucus,Great Falls, Montana

Submitted: November 3,1983 Decided: November 23, 1983

Filed: 

# !\dov23

## I9983

Clerk

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

This is an appeal from an order granting summary judgment in a libel and slander action filed in the District Court of the Ninth Judicial District, State of Montana, in and for the County of Toole. The appellant opens the introduction of his brief with the statement "the facts of this case are a mess." With that statementwe are in total accord. Late in this year of 1983, 

### this Court is called upon to consider disputed facts that began in March, 1968. In addition, in a summary judgment decision, we are faced with a situation where the District Court that granted the summary judgment, did not have available to it the depositions of the four defendants,
a fact unknown to either counsel until the record on appeal
was prepared. In view of the complicated issues raised by this appeal, and the length of the hibernation period that this case lay at rest unattended by the caretakers of our judicial system,we find it necessary to remand the cause to the trial court with the four depositions for reconsideration. The four issues raised for our consideration are:

(1)whether the defendants are liable under state law for libel and slander; (2) 

### whether the defendants can properly claim a privilege or qualified privilege on religious grounds; (3) 

### whether the defense of truth, based on religious grounds is applicable; (4) 

### whether the District Court erred in grantingsummary judgment for defendants, in that there remain material questions of fact that ought to be litigated and tried on themerits; and whether theDistrictJudge erred in granting summary judgment when it did not have available to it the four depositions for review. As previously noted it is this final issue we find controlling, necessitating a return to the trial court. While the District Court disputed on several facts in the case, it found they were not relevant because of a letter from the Watchtower Bible and Tract Society of New York Inc., datedAugust 3, 1982, which controlled the litigation. Had the court had before it the depositions, it is possible that it could have ascertained that there was sufficient evidence togo toa jury. Rule 56(c)M.R.Civ.P., provides that summary judgment is proper if: 

### " 

## * * * thepleadings, depositions, answers to interrogatories, and admissions on file show that there is
no genuine issue astoanymaterial factand that themoving party is entitled to 

### a judgment as a matter of law." In Harlan v. Anderson (1976), 169Mont. 447, 450, 548 P.2d 613, 615, thisCourt commented on the above rule: "This Court has on many occasions commented upon the nature of the burden of proof imposed on the moving party under Rule 56. The Court has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all facts which are deemed material in light of those substantiveprincipleswhich entitledhim to a judgment as a matter of law. We have alsoheld the rule operates tohold the movant to a 'strict standard' and that: 

## "'

## * * * To satisfyhisburden themovant must make a showing that is quite clear what the truth is, and that excludes anyreal doubt as to the existence of any genuine issue of material fact. 

## * * *' Kober & Kyriss v. Stewart & Billings Deaconess Hospital, 148 Mont. 117, 122, 417 P.2d 476, 478." Where ashere, the court did not have the depositions before it, and quite possibly did not have all the facts before it, summary judgment was improperlygranted. Summary judgment 

### is set aside and the cause is returned tothe District Court for further consideration.

We concur: 

# s-,-Qos*4
Chief Justice

~rd~ustice John C. Sheehy, speciallyconcurring: Ithasbeen a longtimecoming but theCourt has now atleast partiallyreversedMustang Beverage Co., Inc. v. Joseph SchlitzBrewing Company (1973), 162Mont. 243, 511 P.2d 1. n