No. DA 06-0060
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 338N

MIKE WRIGG, Plaintiff and Appellant,

v. L&H, LLC, d/b/a COUN TRY INN & SUITES, and LONGHORN, LLC, Defendants and Respondents.

APPEAL FROM: The District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2004-429, Honorable Thomas C. Honzel, Presiding Judge

COUNSEL OF RECORD: For Appellant: Bruce M. Spencer, Attorney at Law, Helena, Montana For Respondents: William J. Gregoire and Robert J. Vermillion, Smith, Walsh, Clarke & Gregoire, PLLP, Great Falls, Montana (L&H) Leo S. Ward and Chad E. Adams, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana (Longhorn)

Submitted on Briefs: October 19, 2006 Decided: December 19, 2006 Filed:

__________________________________________ ClerkJustice Jim Rice delivered th e Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the followi ng memorandum decision shall not be cited as precedent. It shall be filed as a public document with th e Clerk of the Supreme Court and shall be reported by case title, S upreme Court cause number and result to the State Reporter Publishing Company and West Gr oup in the quarterly table of noncitable cases issued by this Court. ¶2 Mike Wrigg (Wrigg) appeals from the order of the First Judicial District Court, Lewis and Clark County, granting L&H, LL C’s (L&H) motion to dismiss and granting Longhorn, LLC’s (Longhorn) motion fo r summary judgment. We affirm. ¶3 Wrigg brought this premises liability action in district court attempting to recover damages for alleged personal injuries suffere d outside a saloon owned and operated by Longhorn. Wrigg also brought similar neglig ence claims against L&H, the owner of the hotel and restaurant in which the Longhorn Sa loon is located. The claims against L&H were dismissed pursuant to M. R. Civ. P. 12 (b)(6)—the District Court held that Wrigg’s amended complaint failed to state a cause of action against L&H. Longhorn moved for summary judgment, and the court, finding that Wrigg failed to raise a genuine issue of material fact by offering nothin g more than speculation or su spicion, granted Longhorn’s motion. Wrigg appeals. ¶4 Wrigg argues that the District Court erre d in dismissing L&H from the action. He contends that L&H had a duty to keep the premises safe a nd exercise ordinary care in doing so, and that it breached this duty. Wrigg also argues th at the court erred in granting
2summary judgment for Longhorn because genuine issues of material fact exist as to whether a bar patron who earlier started a ba r fight and was not asked to leave later assaulted Wrigg outside the bar. ¶5 L&H argues that Wrigg’s amended compla int did not state a claim upon which relief could be granted because it was essent ially a liquor liability claim against the codefendants, Longhorn. L&H main tains that even if the court erred by dismissing L&H, it should not be reversed because the court came to the right conclusion, even if for the wrong reasons. Longhorn argues that the Di strict Court’s grant of summary judgment should be affirmed on the mer its. It contends that Wri gg does not know what the cause of his injury is, and failed to provide any evid ence other than speculation and suspicion to support his theory he was assaulted by the patron who started an earlier disturbance. ¶6 We review a grant of a motion to dismi ss to determine if the district court’s interpretation of the law was correct. Boreen v. Christensen , 267 Mont. 405, 408, 884 P.2d 761, 762 (1994). This Court will affirm di smissal of a complaint for failure to state a claim when the plaintiff can prove no set of facts in support of his claim to entitle him to relief. Dennis v. Brown , 2005 Mont. 85, ¶ 5, 326 Mont. 422, ¶ 5, 110 P.3d 17, ¶ 5. ¶7 We review a grant of summary judgment de novo

. Roy v. Blackfoot Telephone Co-op. , 2004 MT 316, ¶ 11, 324 Mo nt. 30, ¶ 11, 101 P.3d 301, ¶ 11. Our evaluation is the same as that of the trial court. Grimsrud v. Hagel , 2005 MT 194, ¶ 14, 328 Mont. 142, ¶ 14, 119 P.3d 47, ¶ 14. “[T]he movi ng party must establish both the absence of a genuine issue of material fact and entitleme nt to judgment as a matter of law.” Grimsrud , ¶ 14. “If this is accomplished, ‘the burden then shifts to the non-moving party to prove,
3by more than mere denial and speculation, that a genuine issue does exist.’” Grimsrud , ¶ 14. If the court determines that no genuine i ssues of fact exist, the court must then determine whether the moving party is entitled to judgme nt as a matter of law. Grimsrud , ¶ 14. ¶8 It is appropriate to decide this case pur suant to our Order of February 11, 2003, amending Section 1.3 of our 1996 Inte rnal Operating Rules and providing for memorandum opinions. It is mani fest on the face of the briefs and the record before us that the appeal is without merit. The le gal issues are clearly controlled by settled Montana law which the District Court correctly interpreted, and the District Court’s grant of summary judgment for the defendants was a ppropriate as they proved the absence of genuine issues of material fact and that they were entitled to judgment as a matter of law. ¶9 Affirmed.
/S/ JIM RICE

We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ PATRICIA COTTER /S/ BRIAN MORRIS

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