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 Associat io n of Concerned Cit izens, Plaint iffs and Appellees,
v. PAM POLEJEWSKI and MICHAEL HANSON, Defendants and Appellant s .
APPEAL FROM: Di strict Court of the Eighth Judicial District,

In and For the County

of Cascade, Cause No. BDV 20 05
- 1147 Honorable Julie Macek, Presiding Judge COUNSELOF RECORD:

For Appellant s : Michael Lee Hanson, Pam Polejewski ( Pro Se ), Libby, M ontana For Appellee : Patrick F. Flahert y, Attorney at Law, Great Falls, M ontana
Submitted on Briefs: July 23, 2008 Decided: August 19, 2008 Filed:

______ ____________________________________

Clerk August 19 20082

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 me morandum decision sh all 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 o f noncitable cases published inthe 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 an d, eventually, Hanson, began to acquire a variety of animalsat their residence at 77 Wexford Lane in Cascade County
. They eventually accumulated nearlytwo 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. V eterinarians 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 h orses were being fed moldy hay. ¶4 Metz ger eventually filed suit against Appellants to abate a public nuisance. After reviewing the record, including a DVD of the premises filmed b y the Cascade County3

Sherriff’s Office , and listening to oral argument from both parties, the court granted
summary judgment in favor of Metzger. It o rdered that “neither Ms. Polejewski no r Mr. Hanson shall own, possess, or care for any animal, including mammals, fish, birds and reptiles, nor have anyanimal, 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 appear s to be that the District Court judge was biased and should have recused herself; y et, they never made such a motionin the District Court
. While Appellants also appear to disputethat their animals constituted a nuisance, they do not contest o n appealth at there were approximately two hundred animals living on their property. W ith respect to Issue 2, Appellants maintain that the DVD filmed by the CascadeCounty Sheriff’s Office was the product of an illegal search and seizure. The DVD, however, was voluntarily produced by A ppellants 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 , stillh ave 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 is4

replete with various fa ctual statements and contentions whichare 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
me morandum 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, a s 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 th at this appeal is without merit because the legal issues are clearly control led 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