The opinion
No. 92-384
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
JOAN MINNIE and KENNETH MINNIE,
Plaintiffs and Appellants,
THE CITY OF ROUNDUP, MONTANA,
and VICKI KNUDSEN,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin M. Funyak, Billings, Montana
For Respondent:
Mark D. Parker, Parker Law Firm, Billings, Montana
Submitted on Briefs: January 28, 1993
Decided: March 30, 1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Joan and Kenneth Minnie (the Minnies) appeal an order granting
summary judgment in favor of the City of Roundup, Montana (Roundup)
entered in the District Court forthe Fourteenth Judicial District,
Musselshell County. This appeal involves only that portion of the
District Court's summary judgment order pertaining to the Minnies'
42 USC 5 1983 civil rights claim. We reverse the District Court in
part.
Although the Minnies raise two issues for our consideration,
because of our holding, we address only one. We restate that issue
as:
Did the District Court apply the correct standard to Roundup's
motion for summary judgment?
In 1979 Joan Minnie (Minnie) was hired as the City Clerk for
Roundup. Prior to that time, Minnie had been the City Water Clerk
for Roundup. In July 1990 Minnie was terminated by Roundup as the
City Clerk. After her termination, the Minnies filed a complaint
against Roundup and thirteen individuals alleging they were liable
for wrongful termination.
The Minnies' complaint alleged that Roundup and the other
thirteen named defendants were liable for Joan Minnie's wrongful
termination under 5 39-2-901, MCA, et. seq. Additionally, the
complaint alleged: breach of the covenant of good faith and fair
dealing; negligent infliction of emotional distress; intentional
infliction of emotional distress; loss of consortium; and violation
of the Open Meeting Act, 3 2-3-203, MCA. Furthermore, Joan Minnie
alleged violation of her constitutional rights pursuant to 42 U5C
§ 1983.
In September 1991 both Roundup and Vicki Knudsen (Knudsen),
the City Attorney, moved the District Court for summary judgment as
to all claims against them. After a hearing on the motion, the
District Court granted summary judgment in favor of Roundup and
Knudsen. The District Court concluded that the Minnies' claim
against Roundup was barred by the statute of limitations in 5 39-2-
911, MCA. It also concluded that Roundup had the absolute power
pursuant 5 7-4-4105, MCA, to terminate the City Clerk. Finally,
the District Court concluded the bare allegations in the Minnies'
pleadings as to the 42 USC 3 1983 civil rights claim did not create
an issue of material fact and therefore summary judgment was
proper.
We note that although Knudsen appears as a respondent in this
appeal, the Minnies advance no argument contending the District
Court erred in granting summary judgment in her favor. In their
reply brief, the Minnies state they are only appealing the order of
summary judgment in favor of Roundup. Furthermore, after entry of
the summary judgment order, the remaining twelve defendants named
in the complaint were dismissed by stipulation of the parties.
Therefore, they are not considered in this appeal.
In its summary judgment order, the District Court certified
its order as a full and final judgment for purposes of appeal
pursuant to Rule 54(b), M.R.Civ.P. This appeal is taken only from
that portion of the District Court's order pertaining to the
Minniesl 5 1983 civil rights claim.
Was the standard applied by the District Court to Roundup's
motion for summary judgment correct?
As with all summary judgment appeals, our standard of review
is de novo. That is, we review an order of summary judgment by
utilizing the same criteria used by the District Court initially
under Rule 56, M.R. Civ.P. Kronen v. Richter (1984), 211 Mont. 208,
211, 683 P.2d 1315, 1317. We determine whether "there is no
genuine issue of material fact, and the moving party is entitled to
the judgment as a matter of law.'' Gamble Robinson Company v.
Carousel Properties (1984), 212 Mont. 305, 311, 688 P.2d 283, 286.
In this case, summary judgment was an improper vehicle by which to
dismiss this action because the record is devoid of the required
showing of proof entitling Roundup to judgment as a matter of law.
Roundup contends that its motion was properly brought pursuant
to Rule 56(b), M.R.Civ.P. Under Rule 56(b), M.R.Civ.P., a
defendant against whom a claim has been asserted, may "move with or
without supporting affidavits for a summary judgment in the party's
favor as to all or any part thereof." Roundup argues the affidavit
filed by Knudsen was sufficient under Rule 56(e), M.R.Civ.P., to
shift the burden to the Minnies to come forward with proof showing
there was a genuine issue of fact for trial. We do not agree.
Roundup merely bootstraps itself to the affidavit of Knudsen in an
attempt to place itself in the summary judgment arena.
The party opposing a motion for summary judgment has the
burden of demonstrating the presence of a genuine issue as to some
material fact when the movant has met its initial burden of
demonstrating there is no genuine issue as to any material fact.
Peschel v. Jones (1988), 232 Mont. 516, 521, 760 P.2d 51, 54.
When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest
upon the mere allegation . . .
of the adverse party's
pleading, butthe adverse party's response, by affidavits
or as otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue for
trial. If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the
adverse party.
Rule 56(e), M.R.Civ.P. (emphasis added). In order to meet this
initial burden, the moving party must support its motion for
summary judgment with an appropriate evidentiary basis before the
burden shifts to the non-moving party to set forth facts
demonstrating that a genuine issue exists. Mathews v. Glacier
General Assurance Co. (1979), 184 Mont. 368, 381, 603 P.2d 232,
The appropriate evidentiary basis required under Rule 56(e),
M.R.Civ.P., to support a summary judgment motion, is found under
section (c) of Rule 56. When a party moves for summary judgment:
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.
Rule 56(c), M.R.Civ.P. In this case, Roundup presented nothing
outside its responsive pleading and the argument of counsel to
support its summary judgment motion. The affidavit of Knudsen was
not applicable to Roundup's summary judgment motion.
"On a motion for summary judgment the issues presented by the
pleadings are not controlling." Brown v. Thorton (1967), 150 Mont.
150, 155, 432 P.2d 386, 389. Rather, in light of the pleadings,
the evidence before the court, there must be no material issue
of fact remaining which would entitle the non-moving party to
recover. Marriage of Hoyt (1984), 215 Mont. 449, 454, 698 P.2d
418, 421.
Here, no such evidence was before the District Court. Roundup
failed to satisfy the requirement that it support its motion with
an appropriate evidentiary basis. Mathews, 603 P.2d at 239.
Therefore, the Minnies were under no obligation to do more than
simply rest upon the allegations contained in their complaint.
Mathews, 603 P.2d at 239. Under the facts of this case, we hold
the District Court erred in shifting the burden of coming forth
with proof to the ~innies,
when Roundup failed to initially support
its summary judgment motion with an appropriate evidentiary basis.
As we have held the District Court erred in granting Roundup's
summary judgment motion because it failed to satisfy the
requirements of Rule 56, M.R.Civ.P., we do not address whether the
Minnies' complaint properly pleads a cause of action under 42 USC
1983. That portion of the District Court's order granting
summary judgment in favor of Roundup is reversed.
We concur:
March 30, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
David R. Paoli and Kevin M. Funyak
Edwards & Paoli
P. 0. Box 20039
Billings, MT 59104-0039
Mark D. Parker
Parker Law Firm
P. 0. Box 7212
Billings, MT 59103-7212
ED SMITH
CLERK OF THE SUPREME COURT