No. 88-407 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

RUTH M. COLE, and the COLE RANCH, 0 >, 

-+ 

.. . 

Plaintiffs and Appellants, % --i r;! (2 . . 

> - <I? 

VS. <. - , I _. 

FLATHEAD COUNTY, a political subdivision of the State of;,,, 

Montana, et al., I . r,i . . 1-1 

-, 1 

0 ;; Defendants and Respondents. c .3 

CI 

APPEAL FROM: The District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEIt OF RECORD: 

For Appellant: 

Patrick M. Springer, Kalispell, Montana 

For Respondent: 

Ted 0. Lympus, Flathead Countv Attorney, Kalispell, Montana 

Jonathan B. Smith, Deputy County Attorney, Kalispell, Montana 

Samuel M. Warren; Worden, Thane & Haines, P.C., Missoula, Montana 

Submitted on Briefs: December 9, 1988 

Decided: March 13, 1989 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Ruth M. Cole and the Cole Ranch appeal from an order of 

the District Court, Eleventh Judicial District, Flathead 

County, granting summarv judgment against them on their claim 

against the county. The judgment was granted in part because 

the Coles had failed to file an answer brief opposing the 

motion within the time provided by Rule 2, Montana Uniform 

District Court Rules. 

After the order for summary judgment was granted, Ruth 

M. Cole and the Cole Ranch (Coles) moved the District Court 

to reconsider its order and requested oral argument. The 

District Court denied the motion for reconsideration, relying 

in part on its local rule, which in effect denies oral 

argument on motions unless oral argument is specificallv 

applied for with sufficient points to show the District Court 

that briefs alone are insufficient to advise it fully of the 

parties' contentions. 

This opinion treats of the interplay between Rule 56, 

M.R.Civ.P., Rule 2, Montana Uniform District Court Rules, and 

the local rule regarding oral argument. 

The issues for review are: 

1. Whether the time provisions of Rule 2, Montana 

Uniform District Court Rules (MUDCR) are applicable to a 

motion for summary judgment under the provisions of Rule 56, 

M.R.Civ.P.; 

2. Whether a party is entitled to rely upon the 

setting of a hearing for oral argument upon a motion for 

summary judgment; and, 

3. Whether there is confl-ict between the Montana 

Uniform District Court Ru!-es, the Montana Rules of Civil 
Procedure and the local Policies and Procedures of the 

Eleventh Judicial District Court, which relate to grant.inq 

oral argument on motions before the District Court. 

The facts of this appeal are primari.1~ procedural and 

deal with the filing dates of the pleadings and the 

application by the District Court of the Uniform District. 

Court Rules, its local policy and the Montana Rules of Civi!. 

Procedure. 

The case arises from the alleged tortious conduct by 

agents of Flathead County in connection with the criminal 

prosecution of the plaintiff, Ruth Cole, which resulted in a 

mistrial in the Flathead County Justice Court. The Flathead 

County Attorney chose not to retry the matter, and the 

charges were dismissed. 

Motions for summary judgment were filed by the 

defendants on February 8, February 11, and February 29, 1988. 

These motions were granted on April 28, 1988, by the court, 

on the grounds that the plaintiffs had not filed a responsive 

hrief to the motions within the ten days prescribed by Rule 

2, MUDCR. On May 9, 1988, the plaintiffs filed a motion to 

set aside the order granting summary judgment to the 

defendants and requested oral argument. On June 6, 1988, the 

District Court denied the plaint-iff s ' motion. Thereupon, 

this appeal followed. 

I. 

Are the time provisions of Rule 2, MUDCR, applicable to 

motions for summary judgment pursuant to Rule 56, M.R.Civ.P.? 

The MUDCR became effective June 1, 1,987. Rule 2, at 

issl~e in this case, is as follows: 

Rule 2. Motions. 

(a) Upon filinq a motion or within five 

days &ereafter; the moving party shall 

file a brief. The brief may be 
accompanied by appropriate supporting 

documents. Within -A ten davs thereafter 

the adverse part shall file -- an answer 

brief which also may be accompanied a 

a~pronriate *& & su~~ortina 4. J documents. Within 

i 

ten davs thereafter, movant --- may file a 

reply brief or other appropriate 

responsive documents. 

(b) Failure to file briefs. Failure - to 

file briefs may subject, the motion to 

summary ruling. Failure to file a brief 

within five days a - the moving party 

shall be deemed an admission that the -- 

motionis - without Grit. Failure -- to file 

- an answer brief - bv the adverse ~art~ 

within ten as shall - be deemeh - an 

admission -- that the motion -- is well taken. 

Reply briefs by movant are optional, and 

failure to file will not subject a motion 

to summary ruling. 

(c) Oral argument. The court may order 

oral argument sua sponte or upon 

application of a party. 

(d) When motion deemed submitted. 

Unless oral argument is ordered or unless 

the time is enlarged by the court, the 

motion is deemed submitted at the 

expiration of any of the applicable time 

limits set forth above without supporting 

briefs having been filed. 

If oral argument is ordered, the motion 

will be deemed submitted at the close of 

argument unless the court orders 

additional briefs, in which case the 

motion will be deemed submitted as of the 

date designated at the time for filing 

the final brief. 

(e) - In - the event of conflict, the 

Montana Rules - of -- civil procedure shm 

control. Time computation shall be 

governed by Rule 6 (a), M.R.Civ.P. 

(Emphasis added.) 
In this case, the defendants moved the court for 

summary judgment in their favor, pursuant to Rule 56 (c) , 

M.R.Civ.P. That rule is in accord with its federal 

counterpart, and with respect to subsequent procedures 

provides : 

Rule 56(c). Motion and proceedings 

thereon. The motion shall be served at 

least 10 days before -- the time fixed for 

the hearing. The adverse party prior to 

the day of hearing serve opposing 

affidavits. The judgment sought shall be 

rendered forthwith if the pleadings, 

depositions, answers to interrogatories, 

and admissions on file, together with the 

affidavits, if any, show that there is no 

genuine issue as to any material fact and 

that the moving party is entitled to 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 to the amount of damages. (Emphasis 

added. ) 

The purpose and effect in Montana of Rule 56, 

M.R.Civ.P. are well-settled. Its purpose is to dispose 

promptly of actions in which there is no genuine issue of 

fact. Silloway v. Jorgenson (19651, 146 Mont. 307, 406 P.2d 

167. The formal issues presented bj7 the pleadings are not 

controlling and the District Court must consider the 

evidentiary materials listed in Rule 56(c), and any other 

evidentiary matter to determine whether there exists a 

genuine issue of material fact. Hager v. Tandy (1965), 146 

Mont. 531, 410 P.2d 447. Oral testimony at the hearing may 

properly be considered on motions for summary judgment. 

Citizens State Bank v. Duus (1.969), 154 Mont. 18, 459 P.2d 

696; Daniels v. Paddock (1965), 145 Mont. 207, 399 ~.2d 740. 

If genuine issues of fact exist, an order deciding the fact 

issues on a motion for summary judgment is improper. Hull v. 
D. Irvin Transport (1984), 213 Mont. 75, 690 P.2d 414. We 

have held that a district court did not err by allowing 

defendants later to submit briefs and argue plaintiffs' 

summary judgment motion when defendant's counsel originally 

overlooked the motion. Todd v. Berner (1984), 214 Mont. 263, 

693 P.2d 506. 

Since the purpose of summary judgment is to encourage 

judicial economy by eliminating unnecessary trials, a grant 

of summary judgment is proper only where there is no genuine 

issue of material fact and the moving party is entitled to 

judgment as a matter of law. The movant has the burden of 

showing a complete absence of any genuine issue as to all 

facts considered material in light of the substantive 

principles that entitle the movant to a judgment as a matter 

of law, and all reasonable inferences that may he drawn from 

the offer of proof are to be drawn in favor of the opposinq 

party. Cereck v. Alhertsons, Inc. (1981), 195 Mont. 409, 637 

P.2d 509. 

Of course, when the record, as made by the movant, 

discloses no genuine issue as to any material fact, the 

burden then shifts to the party opposing the summary judgment 

motion to present evidence of a material and substantial 

nature raising a genuine issue of fact. Mayer Bros. v. 

Daniel Richard Jewelers, Inc. (Mont. 1986), 726 P.2d 815, 43 

St.Rep. 1821. 

When all is said and done, the essential question for 

the District Court in deciding a motion for summary judgment 

either for the plaintiff or for the defendant is whether 

there exists a genuine issue of material fact. That inquiry 

does not admit of decision merely on a technical point, such 

as whether briefs have been filed on time. 

We had a similar question before this Court, before the 

adoption of the MTJDCF., in Krusemark 77. Hansen (19801, 186 
Mont. 174, 606 P.2d 1082. In that case, a local district 

court rule provided that if a reply brief had not been filed 

within a ten-day period, the motion was deemed well taken. 

Relying on the local rule, the District Court had granted 

summary judgment. On appeal, this Court said: 

Rule 56 (c) contemplates that the adverse party can 

file opposing materials up to the day of the 

hearing. Since Rule 3 would deny this right to an 

adverse party who has not filed a timely brief, it 

cannot be applied to Rule 56 motions. 

Rule 3 is also inconsistent with the basic function 

of the trial court in reviewing motions for summary 

judgment. Rule 56 places the burden of proof on 

the moving party to establish the absence of any 

genuine issue of material fact. [Citing 

authority.] The court has a duty under Rule 56 to 

deny a motion for summary judgment when there is 

any doubt whether a factual question exists. 

[Citing authority.] Rule 3 undermines the court's 

function to the extent that it deflects the court's 

attention from considering whether factual disputes 

exist and directs it solely to the question of 

whether a reply brief has been filed within the ten 

day period permitted by Rule 3. 

Krusemark, 606 P.2d at 1084. 

The defendants in this case contend that Krusemark is 

not applicable because that case preceded the adoption of the 

MUDCR. However, the local rule considered in Krusemark is 

substantially the same as Rule 2, MUDCR, and the effect of 

application of Rule 2 is the same as the application of the 

local rule in Krusemark. Under Rule 2(e), MUDCR, in the 

event of conflict, the Montana Rules of Civil Procedure 

control. We hold therefore that the procedure to he followed 

on motions for summary judgment must conform to the 

provisions of Rule 56, M.R.Civ.P. 

We combine our discussion of the second and third 

issues raised by the plaintiffs, since both issues relate to 
oral argument and the necessity of a hearing in connection 

with a motion for summary judgment. 

Rule 56(c) provides that when either a plaintiff or a 

defendant moves for summary judgment, "the motion shall be 

served at least ten days before the time fixed for the 

hearing." Since, in this case, the last of the defendants' 

motions for summary judgment was filed on February 29, 1988, 

and the District Court did not rule on the motions until 

April 28, 1988, it is obvious that any party could have 

applied to the District Court for a hearing, althouqh 

ordinarily the movant would undertake that responsibility. 

The parties, however, may have been deterred by the 

provisions of Policies and Procedures dated January 11, 1988, 

adopted by the presiding district judge. With respect to 

oral argument, that Policy stated: 

2. Oral argument. Although these rules (and our 

customs) have long permitted oral arguments, you 

will probably find it quite possible, and even 

surprisingly easy, to submit your arguments 

comprehensively and as persuasively as you can be 

through a brief, without the need to supplement the 

same in person, or to say again in open court what 

has been said well enough in your brief. 

Therefore, unless I am satisfied that oral argument 

would be beneficial (in which case I may call for 

it, - sua sponte), my practice will be to discourage 

this occasionally wasteful use of the Court's (and 

your) time, and to require full-fledged compliance 

with Rule 2 (c) and (d) , Uniform Rules. By 

"full-fledged," I mean your application for leave 

to present oral argument must be couched in 

specific terms, to show me that briefs alone are 

insufficient to advise me fully of your client's 

contentions and all relevant points of law. 

The objective of Rule 2 of the foregoing local policy 

of the Distrj-ct Court is not unworthy. With respect to 

ordinary motions not involving Rule 56, the local policy 

undoubtedly serves to save the ti-me of the court and to 
expedite decisions on motions. However, under Rule 56(c), 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. Moreover, it 

is permissible under Rule 56 for the District Court to 

receive affidavits on the day of the hearing and to take oral 

evidence, as has been indicated above. In connection with 

oral argument on a Rule 56 motion under the federal 

counterpart, the Court of Appeals for the Ninth Circuit held 

in Dredge Corp. v. Penny (9th Cir. 1964), 338 F.2d 456, 

461-462, as follows: 

Rule [s] 56 (c) , 78 and 83, read together, authorize 

district courts to provide by a rule that a party 

desiring oral argument on a motion for summary 

judgment must apply therefore, in the absence of 

which oral argument will be deemed to have been 

waived. Such a local rule was involved, and 

upheld, in Bagby v. United States [(8th Cir. 19521, 

199 F.2d 2331. 

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 summarv judgment is 

denied. Even when a party is entitled to oral argument, as a 

general proposition there will be general circumstances when 

a court may properly terminate oral argument or even dispense 

with it and deem the right waived. 6 Moore's Federal 

Practice, 56.145 [I], at 56-193 (1988). 

We hold, therefore, that unless the right to a hearing 

on a Rule 56 motion is specifically waived by all parties 

(and not waived simply by the failure to file briefs) either 

the movant or the adverse parties are entitled to a hearing 

under Rule 56 in the ordinary case. There may be an occasion 
when under the law and the facts adduced, the movant would be 

so clearly entitled as a matter of 1-aw to a summary judgment 

that a district court might by order dispense with the 

necessity of a hearing. That, however, is not the kind of 

order presented to us here. 

In this case, the District Court made findings of fact 

in connection with its decision on summary judgment in which 

it "reviewed the record and the applicable law in a light 

most favorable to the plaintiffs (in the absence of their 

objection) . . .. " The District Court did conclude that bv 

failing to file responsive briefs, the plaintiffs had 

admitted the defendants' motions were well taken. Nowhere in 

the findings of fact or conclusions of law is there a 

statement that there is no genuine issue of material fact. 

Findings of fact and conclusions of law are unnecessary in 

decisions with respect to motions made under Rule 12, Rule 56 

or any other motion except as provided in Rule 41(b), 

M.R.Civ.P. Eisemann v. Hagel (1971), 157 Mont. 295, 485 P.2d 

703. A district court is required under Rule 5?(a), 

M.R.Civ.P. in granting a motion under Rules 12 or 56 to 

specify the grounds therefore with sufficient particularity 

as to apprise the parties and the appellate court of the 

rationale underlying the ruling. This may be done in the 

body of the order or in an attached opinion. In that light, 

the findings here are insufficient. 

Accordingly, the order granting summary judgment in 

favor of the defendants in this case is reversed and the 

cause is remanded for further 

"4 Justice 

We Concur: 

L ' 
Justices 
Mr. Justice L. C. Gulbrandson, dissenting. 

Although I agree with most of the statements in the 

majority opinion regarding the use of Rule 56(c), M.R.Civ.P., 

I do not concur with the holding that, unless the right to a 

hearing on a Rule 56 motion has been specifically waived, 

either the movant or the adverse parties are entitled to a 

hearing. 

In view of the long history of conforming the Montana 

Rules of Civil Procedure to the Federal Rules, both in 

enactment and in interpretation, I would look to the Federal 

practice and authorities for guidance in interpreting the 

interplay between Rule 2, M.U.D.C.R. and Rule 56(c), 

M.R.Civ.P. 

Rule 2, M.U.D.C.R., for all practical purposes, has the 

same procedural effect as Rule 220-1 of the Rules of 

Procedure for the District of Montana. Rule 220-1 has been 

construed by the Federal Judges for the District of Montana 

as not being inconsistent with Rule 56 (c) , F.R.Civ.P., and I 

would construe Rule 2, M.U.D.C.R., in the same manner. 

Rule 2, M.U.D.C.R., does not distinguish between the 

types of motions to which it applies, does not conflict with 

the provisions for the filing of affidavits, but does set a 

briefing schedule applicable to all motions and refers to 

time enlargement by the court. 

In addressing concern whether a hearing is 

automatically triggered by the filing of a motion for summary 

judgment, the Ninth Circuit Court of Appeals in Dredge Corp. 

v. Penny, supra, held that "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" and 

further held that district courts may provide by rule that a 
party desiring oral argument must request the same or be 

deemed to have waived it. Although the Ninth circuit Court 

prefers that oral argument be afforded on non-frivolous 

motions for summary judgment, Demarest v. United States (9th 

Cir. 1983), 718 F.2d 964, a Federal District Court's failure 

to grant such hearing does not constitute error in the 

absence of prejudice. Fernhoff v. Tahoe Reqional Planning 

Agency (9th Cir. 19861, 803 F.2d 979. 

In my view, the presiding District Judge properly 

recognized that under Rule 56, the opposing party is not 

required to file an affidavit in opposition, or other 

material, and is still entitled to a denial of the motion for 

summary judgment where the materials on file are insufficient 

on their face or said materials demonstrate the existence of 

a genuine issue as to any material fact. Hamilton v. 

Keystone Tankship Corp. (9th Cir. 19761, 539 F.2d 684. 

In my view, the District Judge did not apply Rule 2, 

M.U.D.C.R., and his local rule regarding oral argument, in a 

manner inconsistent with Rule 56, M.R.Civ.P. 

The order appealed from states: 

This matter is before the Court on 

motions for summary judgment by several 

Defendants. The Defendants have all 

submitted briefs and supporting 

affidavits : Plaintiffs have wholly 

failed to respond or to request an 

extension of time in which to answer. 

Thus, pursuant to Rule 2, M.U.D.C.R., 

Plaintiffs are deemed to have admitted 

that the motions are well taken. The 

Court, having reviewed the record and the 

applicable law in a light most favorable 

to Plaintiffs (in the absence of their 

objection), now makes the following: 

and thereafter is set forth detailed findings, perhaps not 

usual in summary judgment proceedings, but indicative of the 
thoroughness with which the District Judge considered all the 

material on file. 

The findings as to defendants Omis Short and Tami Welch 

include the following: 

12. The Plaintiffs have raised no 

questions of material fact concerning 

their allegations against these 

Defendants. 

In addition, the District Judge, in ruling on 

plaintiff's motion to set aside Findings, Conclusions, and 

Order, stated: 

Aside from Plaintiff's tacit 

admission that the motions were well 

taken, the file, depositions, and 

Defendants' motions for summary judgment 

failed to disclose any issues of material 

fact by which Plaintiff could sustain her 

cause of action. 

In view of the fact that plaintiff's counsel made no 

response, for a period of two months, to the motion for 

summary judgment, I would affirm. 

 ust tip