Bellamah v. Datsopoulas, PC

• Court: Montana Supreme Court
• Decided: June 9, 2026
• Docket: DA 24-0688
• Status: Published
• Author: Gustafson

Opinion

06/09/2026

DA 24-0688 Case Number: DA 24-0688

IN THE SUPREME COURT OF THE STATE OF MONTANA

2026 MT 124

DR. DAVID BELLAMAH,

Plaintiff and Appellant,

v.

DENNIS E. LIND, ESQ., MOLLY K. HOWARD, ESQ., MATTHEW A. MCKEON, ESQ., and DATSOPOULOS, MACDONALD & LIND, P.C.,

Defendants and Appellees.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-23-301 Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Marybeth M. Sampsel, Measure Law, PC, Kalispell, Montana

For Appellee:

Fred Simpson, Trevor Uffelman, Hall & Evans, LLC, Missoula, Montana

Ryan C. Addis, Hall & Evans, LLC, Billings, Montana

Submitted on Briefs: February 11, 2026

Decided: June 9, 2026 Filed:

__________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Dr. David Bellamah appeals from the November 22, 2024 order of the Fourth

Judicial District Court, Missoula County, granting defendants Dennis E. Lind, Esq., Molly

K. Howard Esq., Matthew A. McKeon, Esq., and Datsopoulos, MacDonald & Lind, P.C.’s

(hereinafter collectively “DML”) motion for summary judgment. Bellamah asserts the

District Court erroneously analyzed his legal malpractice claim as a “lost appeal” claim

and, as a result, ignored genuine issues of material fact which precluded summary

judgment. We restate the issue on appeal as follows:

Whether the District Court erred in granting DML’s motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Dissolution Proceedings

¶2 In September 2017, Bellamah retained DML to represent him in proceedings

regarding the dissolution of his marriage. During the course of the representation,

Bellamah and DML became aware of a federal investigation into Bellamah’s medical

practice regarding fraudulent claims made under the False Claims Act. The availability of

funds to cover any potential financial obligation related to the False Claims Act was from

thereon considered during the dissolution proceedings.

¶3 On July 19, 2018, DML represented Bellamah in a settlement conference with his

former spouse, Carolyn. At the conclusion of the conference, a Marital Property Settlement

Agreement (MPSA) was negotiated between the parties and drafted by Carolyn’s counsel.

The MPSA included a provision related to stocks, bonds, and securities held by the parties’

jointly in what was referred to as the “Johnson Account.” The provision stated, “This

2 account shall be held as ‘tenants in common’ and used to pay restitution or fines, but not

defense costs, including attorneys’ fees.” The MPSA also included provisions related to

the payment of child support. Specifically, the MPSA provided, “Child support has been

calculated in accordance with the Montana Child Support Guidelines” and it “shall be paid

by [Bellamah] to [Carolyn] in the sum of $8,324.00 per month . . . payable on the first day

of each month until the child attains the age of 18 years or graduates from high school

whichever is later . . . .” The MPSA was filed and adopted by the district court in its

Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage, issued

August 7, 2018.

¶4 In December 2021, Bellamah entered into a settlement agreement with the United

States to resolve the federal government’s pending fraud allegations under the False Claims

Act. The settlement agreement, which was based in part on the amount and availability of

funds held in the Johnson Account, required Bellamah to “pay to the United States

$3,746,324.89 (Settlement Amount), plus interest, if applicable, of which $1,923,861.70 is

restitution and the remaining $1,822,463.19 is settlement of a damage multiplier under

§ 31 U.S.C. 3729(a)(1).”

¶5 Following the settlement of the fraud allegations, Bellamah sought release of the

Johnson Account funds to cover the payment due to the federal government. Litigation

between Bellamah and Carolyn ensued, with both parties filing motions to enforce the

MPSA. The primary issue set forth in the litigation was whether the MPSA, which called

for the release of funds for the purpose of paying “any restitution or fines” in the

government’s case, called for the release of funds to cover a damage multiplier. At the

3 hearing on the cross-motions, DML argued on behalf of Bellamah that the Johnson

Account provision “set aside” funds to cover “whatever monetary amount [] necessary to

satisfy the Department of Justice with respect to their allegations.” When asked about the

language used in the MPSA, Dennis Lind explained that the firm was generally unfamiliar

with the False Claims Act, stating, “I didn’t know about the False Claims Act and what

language might be there,” and explaining “there wasn’t any intense thought given to, you

know, what might be included in some federal regulation”; “we didn’t look up the False

Claims Act to see how they described what they might do.” Lind argued that though the

settlement referenced a damage multiplier, it was nonetheless restitution under the

provision, explaining, “That’s what we were doing here, saying, we’re going to restore,

we’re going to provide restitution back to the – to the Department of Justice . . . .” Counsel

for Carolyn countered, explaining that “those words ‘restitution’ and ‘fine’ did have

meaning in our room,” “were things we [were] contemplating with separate counsel,” and

ultimately were not covered by the language used in the Johnson Account provision.

¶6 On March 11, 2022, following the hearing on the parties’ cross-motions, Judge

Deschamps issued an order ruling that only $1,596,805.22 of the Johnson Account funds

could be used to satisfy Bellamah’s settlement. Bellamah met with DML to discuss his

options. Rather than appeal the district court’s order, DML advised Bellamah to file a

“motion to reconsider” accompanied by an affidavit from an expert on the False Claims

Act who, DML claimed, would be able to “educate” the court as to the damage multiplier

being restitution or a fine under the language of the MPSA. On April 8, 2022, DML filed

4 its Motion to Reconsider, accompanied by the supporting expert affidavit on Bellamah’s

behalf.

¶7 On May 4, 2022, Bellamah again met with DML. At no time during the meeting

did DML advise Bellamah as to the deadline for appealing the district court’s order, nor

did DML provide Bellamah with the timeline for the motion to reconsider or inform

Bellamah that the motion would be deemed denied if it was not ruled upon within 60 days

of filing, pursuant to M. R. Civ. P. 59(f).

¶8 Bellamah followed up with DML again on June 6, 2022—59 days after the motion

to reconsider was filed. DML told Bellamah they were “currently just waiting on the Judge

to rule on the motion.” DML did not mention Rule 59(f) or that the motion would be

deemed denied if it was not ruled on the next day.

¶9 Ultimately, the district court failed to rule on the motion and it was deemed denied

on June 7, 2022. DML did not inform Bellamah of the denial or the 30-day window to

appeal under M. R. App. P. 4(5)(a)(i). When Bellamah contacted DML weeks later on

June 28, 2022, DML merely informed Bellamah they were “still waiting on the Judge to

rule” and it was “[k]ind of just a waiting game until we receive a written Order.”

¶10 On July 14, 2022, Carolyn filed a Notice of Denial of Motion for Reconsideration

and Expiration of Time to File an Appeal. DML did not inform Bellamah of the filing or

provide him a copy of the notice. At this time, DML did however inform Bellamah that

the motion was deemed denied and explained that the 30-day window to appeal the denial

had already passed.

5 Legal Malpractice Proceedings

¶11 On March 20, 2023, Bellamah filed a complaint against DML in Missoula County

District Court alleging “[DML] breached their duty to [Bellamah] by failing to use

reasonable care and skill in their representation of [him].” Specifically, the complaint

asserts: DML represented Bellamah in his dissolution of marriage proceedings, including

during the negotiation and drafting of the MPSA; DML “failed to revise the language of

the MPSA to reflect that the support obligation was a per child amount”; DML “failed to

correctly advise [Bellamah] concerning the modification of his child support upon his

oldest child reaching the age of majority,” which had not been reduced accordingly

“because the MPSA did not reflect a per child amount”; DML filed a motion to reconsider

supported by an expert who did not testify at the hearing; DML did not advise Bellamah

as to the timelines for the motion being deemed denied; DML informed Bellamah they

were “still waiting on the Judge to rule” weeks after the motion had already been deemed

denied; DML failed to inform Bellamah of the July 7, 2022 deadline to appeal; DML failed

to inform Bellamah of the Notice of Denial of Motion for Reconsideration and Expiration

of Time to File an Appeal filed by his former spouse; DML failed to timely appeal the

denial of his motion for reconsideration; and “[DML’s] breach caused damage[] to

[Bellamah] in an amount to be proven at trial.”

¶12 DML sought further clarification regarding Bellamah’s negligence claim through

discovery. On May 7, 2024, Bellamah provided the following response to DML’s

Interrogatory No. 10:

6 INTERROGATORY NO. 10: Identify each act or omission by Defendants that supports your allegation in Paragraph 29 of your Complaint that Defendants failed to use reasonable care and skill in representing you.

ANSWER: Objection, this Interrogatory is cumulative, overly broad, unduly burdensome, and improperly calls for a legal conclusion. Without waiving said objections, Plaintiff outlined the factual allegations in his Complaint in Paragraphs 6-26. Plaintiff further alleges that Defendants failed to use reasonable care and skill by failing to timel[y] file Notice of Appeal, failing to advise Plaintiff regarding the timelines set forth in M.R.Civ.P. 60(b), failing to adequately caption and brief a Motion for Reconsideration, failing to present necessary evidence and testimony at the March 2022 hearing, and/or failing to adequately represent Plaintiff’s interests in the negotiating and drafting of the Marital and Property Settlement Agreement, as well as failure to represent Dr. Bellamah’s interests in the drafting and negotiating of the child support agreement. However, discovery is ongoing and may lead to additional factual allegations.

¶13 On July 26, 2024, six months before the close of discovery, DML filed a motion for

summary judgment. In the brief supporting its motion, DML conceded that it owed a duty

to Bellamah as his counsel in the dissolution proceedings. DML further conceded that it

had “failed to appeal [the] denial of [Bellamah’s] Motion to Reconsider within the time

limit prescribed by the Montana Rule of Appellate Procedure 5(a)(I) [sic].” Instead of

challenging the standard of care or Bellamah’s allegations regarding its conduct, DML

asserted the sole issue before the court to be “whether [DML’s] failure to appeal

[Bellamah’s] Motion to Reconsider caused [Bellamah’s] alleged damages.” Citing our

decision in Richards v. Knuchel, 2005 MT 133, 327 Mont. 249, 115 P.3d 189, DML

purported the issue of causation to be a question of law appropriate for summary judgment.

DML further argued the district court’s ruling on enforcing the MPSA had been proper and

was unlikely to be reversed on appeal, and thus DML’s failure to appeal did not cause

Bellamah injury. To support this position, DML filed an affidavit from attorney Gary

7 Zadick, in which Zadick cited Judge Deschamps’s “significant history of issuing rulings

that are affirmed by the Montana Supreme Court” and opined that the district court’s denial

of the underlying motion to reconsider would have been affirmed had DML filed a timely

appeal. Accordingly, DML argued no genuine issue of material fact existed as to causation

and it was therefore entitled to summary judgment as a matter of law.

¶14 In response, Bellamah cited the allegations set forth in his complaint and

Interrogatory No. 10 to stress that his negligence claim was not limited to the firm’s failure

to file a timely appeal. Rather, according to Bellamah, DML committed various, ongoing

and interconnected acts of malpractice throughout its representation, tainting the record

and materially damaging Bellamah’s position prior to DML’s failure to appeal. Thus,

Bellamah argued, to the extent he would have lost on appeal, that loss was due to the

negligent work of DML, and was therefore a question of fact not suitable for summary

judgment.

¶15 In its reply brief supporting its motion for summary judgment, DML maintained

that Bellamah’s claim was based solely on a lost appeal, and argued the additional claims

of negligence raised by Bellamah, including the allegations regarding the child support

provision, were unpled and unsupported, and therefore did not create any genuine issue of

material fact to preclude summary judgment. In addition to the reply brief, the firm filed

affidavits from numerous attorneys, including: defendants Dennis Lind, Matthew McKeon,

and Molly Howard of DML; counsel for Carolyn who averred to opposing any prospective

appeal; and Jane Cowley, who provided a statement as to the standards used in calculating

child support.

8 ¶16 Following hearing, the District Court issued its order granting summary judgment

for DML. The court determined Bellamah’s lost appeal would have been unsuccessful as

a matter of law and was therefore not the cause of any injury. The District Court further

concluded “[n]o new allegations raised for the first time in discovery and/or not raised in

the pleadings create[d] an issue of fact on Plaintiff’s claim that Defendants were negligent

for failing to appeal the District Court’s decision in the underlying action.” Bellamah

appeals.

STANDARD OF REVIEW

¶17 We review a district court’s ruling on summary judgment de novo, using the same

M. R. Civ. P. 56 criteria as the district court. McAtee v. Morrison and Frampton, PLLP,

2021 MT 227, ¶ 11, 405 Mont. 269, 512 P.3d 235. Summary judgment is appropriate when

“the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” M. R. Civ. P. 56(c)(3).

DISCUSSION

¶18 Whether the District Court erred in granting DML’s motion for summary judgment.

¶19 On appeal, Bellamah maintains the District Court improperly limited the scope of

DML’s negligence to the firm’s failure to timely appeal, ignoring genuine disputes of

material fact as to DML’s pre-appeal negligence. DML counters, arguing Bellamah’s

complaint was limited to just two theories of negligence: DML’s failure to appeal and

9 DML’s failure to correctly advise on modifying the child support provision.1 DML asserts

the District Court properly determined DML’s failure to appeal did not injure Bellamah

because the underlying ruling on the MPSA was legally correct and the firm’s advice

regarding the child support provision—while pled—was factually and legally unrelated to

any cognizable harm. DML further asserts Bellamah’s allegations of negligence as to

DML’s drafting of the MPSA and its representation at the March 2022 hearing to enforce

the MPSA were new unpled theories of liability which the District Court properly declined

to consider. Additionally, DML argues summary judgment was proper on account of

Bellamah’s failure to support his claims with expert testimony establishing a breach of the

standard of care.

¶20 To prevail on a legal malpractice claim, a plaintiff must show by the preponderance

of the evidence: (1) the attorney owed the plaintiff a duty of care; (2) the attorney breached

the duty of care by failing to use reasonable care and skill; (3) the plaintiff suffered an

injury; and (4) the attorney’s conduct caused the injury alleged. Labair v. Carey, 2012 MT

312, ¶¶ 20, 24, 367 Mont. 453, 291 P.3d 1160. To establish the applicable standard of care

that an attorney owed a plaintiff, expert testimony is generally required “unless the conduct

complained of is readily ascertainable by a layman.” Brookins v. Mote, 2012 MT 283,

¶ 63, 367 Mont. 193, 292 P.3d 347 (quoting Mont. Deaconess Hosp. v. Gratton, 169 Mont.

1 Confusingly, DML also asserts in its briefing that “for the first time on appeal, and contrary to the allegations in his Complaint, [Bellamah] now contends that ‘This is Not a Lost Appeal Case.’” This statement is simply not true. Bellamah’s argument on appeal reflects his argument at the District Court, in which he repeatedly stressed that his negligence claim was not based solely on the lost appeal but on the allegations contained in his complaint and his answer to Interrogatory No. 10. 10 185, 189, 545 P.2d 670, 672 (1976)). To establish causation in an attorney malpractice

case, the plaintiff must provide proof “that the attorney’s negligent conduct was a

cause-in-fact of the damage alleged, i.e., that the injury would not have occurred ‘but for’

that conduct.” Labair, ¶ 24. Accordingly, a “suit within a suit” often needs to be tried, the

process for which calls upon a trier of fact “to decide what the outcome for the plaintiff

would have been in the underlying case if it had been tried properly.” Labair, ¶ 26. Thus,

a legal malpractice claim generally presents a question of fact—“what a reasonable jury or

fact finder would have determined in the underlying case, ‘but for’ the attorney’s

negligence.” Labair, ¶ 26 (citing Richards, ¶ 18).

¶21 However, when the only negligent conduct in a legal malpractice claim is an

attorney’s alleged failure to appeal, the underlying record is untainted by the attorney’s

negligence—there is no issue as to “what a reasonable jury or fact finder would have

determined . . . ‘but for’ the attorney’s negligence.” See Richards, ¶ 19. Rather, the

question is “how an appellate court would have ruled, but for the attorney’s failure to

perfect an appeal.” Richards, ¶ 19.2 Thus, the issue is no longer a question of fact, but a

question of law, which the district court is to decide “based on the special expertise required

to analyze the relevant law and any corresponding rules of appellate procedure.” Richards,

¶ 22. Since the underlying record and transcript are untainted by the attorney’s alleged

2 In briefing, Bellamah asserts Richards was overturned by Labair. However, in regard to Richards, Labair merely clarified that proximate cause should only be considered in attorney malpractice claims when the attorney alleges that the chain of causation was severed by an independent intervening cause. Labair, ¶ 21. Accordingly, Labair only overturned Richards to the extent Richards included proximate cause in its analysis. 11 negligence, a district court is to “review [] the transcript and record of the underlying

action” and apply the same standard of review that would be applied by the appellate court

on direct appeal. Richards, ¶ 23. Richards therefore controls when the alleged malpractice

consists solely of failing to perfect an appeal from an otherwise untainted record; it does

not resolve causation as a matter of law when the plaintiff alleges that counsel’s earlier

negligence created or materially impaired the record from which the appeal would have

been taken.

¶22 Here, contrary to DML’s assertions and the District Court’s conclusion, Bellamah’s

negligence claim is not solely premised upon DML’s failure to appeal. As Bellamah set

forth in his complaint, DML “breached their duty . . . by failing to use reasonable care and

skill in their representation of [him].” While the complaint alleges DML failed to timely

appeal, it also specifically states that Bellamah “was advised that the child support amount

would be cut in half immediately upon his oldest child reaching the age of majority,” but

that “DML attorneys failed to revise the language of the MPSA to reflect that the support

obligation was a per child amount.” The complaint further alleges, “DML attorneys failed

to correctly advise [Bellamah] concerning the modification of his child support upon his

oldest child reaching the age of majority,” and “[b]ecause the MPSA did not reflect a per

child amount, the support obligation was not reduced upon the oldest child reaching the

age of majority.” These allegations, if proven, clearly support a negligence claim, yet DML

completely failed to address these allegations in its principal brief supporting its motion

for summary judgment.

12 ¶23 Further, DML failed to address the allegations set forth by Bellamah in response to

Interrogatory No. 10, which specifically included DML’s failure to represent Bellamah’s

interests in negotiating and drafting the MPSA with regard to the Johnson Account and

child support provisions, as well as DML’s failure to present necessary evidence and

testimony at the March 2022 hearing on the cross-motions to enforce the MPSA. These

allegations of negligent conduct occurred prior to DML’s failure to appeal, tainting the

underlying record and transcripts, and creating issues of fact as to the likelihood of

Bellamah’s success on appeal. To hold otherwise would allow an attorney to shield

themselves from liability with their own negligence. Consider for example:

[An] attorney in [an] original action . . . negligently failed to pursue the discovery that would have insured success. If the results of that same discovery are now necessary to prove the merit of the underlying claim—and the passage of time has precluded obtaining that information—the attorney by his own negligence will have protected himself from liability. In such a case, the more negligent the attorney, the more difficult is the plaintiff’s task of proving causation.

Labair, ¶ 39 (quoting Erik M. Jensen, The Standard of Proof of Causation in Legal

Malpractice Cases, 63 Cornell L.Rev. 666, 671 (1978)).

¶24 DML asserts Bellamah’s allegations regarding the firm’s drafting of the MPSA and

its representation at the March 2022 hearing did not appear in his complaint and thus,

cannot preclude summary judgment. Citing federal pleading requirements and a statement

by this Court in Kostelecky v. Peas in a Pod LLC, 2022 MT 195, 410 Mont. 239, 518 P.3d

840, DML asserts that parties are not permitted to raise “new unpled theories of liability

that are different than those pled under the governing complaint” to preclude summary

judgment. Kostelecky, ¶ 42. Our statement in Kostelecky was however regarding

13 arguments presented to this Court on appeal and not on the scope of a complaint’s

allegations as to summary judgment.

¶25 It is well settled that “[a] complaint must provide a defendant with notice and an

opportunity to defend himself.” Gonzales v. Walchuk, 2002 MT 262, ¶ 13, 312 Mont. 240,

59 P.3d 377. It must provide “notice of the facts the plaintiff intends to prove” and “the

facts must disclose the elements necessary to make the claim.” Gonzales, ¶ 13 (citation

omitted). The complaint must also “demand judgment for the relief the plaintiff seeks.”

Gonzales, ¶ 13 (citation omitted). However, this can be accomplished by a short and plain

statement of the claim, which is all the rules require. Griffin v. Moseley, 2010 MT 132,

¶ 39, 356 Mont. 393, 234 P.3d 869; M. R. Civ. P. 8(a)(1). “Such simplified ‘notice

pleading’ is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense and to define more narrowly the disputed facts and issues.” Griffin, ¶ 39 (quoting

Spaberg v. Johnson, 143 Mont. 500, 503, 392 P.2d 78, 80 (1964)).

¶26 In Griffin, we considered whether a district court’s grant of summary judgment to a

defendant doctor in a medical malpractice case was proper where a dispute of material fact

existed as to the defendant doctor’s pre-surgical treatment of the plaintiff where the

plaintiff’s complaint did not specifically reference any pre-surgical treatment, but broadly

alleged “the actions of [the treating physician] constitute a deviation from the accepted

standard of care and constitute negligence which [] caused the injuries to [plaintiff] as

described.” Griffin, ¶¶ 6, 36. The district court concluded summary judgment was proper

after finding no textual allegation in the complaint for a failure to exhaust non-surgical

14 therapies before attempting surgery. Griffin, ¶ 36. We reversed; while the complaint did

not specifically allege negligence regarding pre-surgical treatment, we concluded the claim

was encompassed by the plaintiff’s broad allegation of negligence and the defendant doctor

was nonetheless on notice based on information disclosed during discovery. Griffin,

¶¶ 37-39.

¶27 Here, Bellamah’s complaint, like the one in Griffin, pleaded a professional

negligence claim arising from DML’s representation in the dissolution proceedings. His

discovery response to Interrogatory No. 10, served before DML moved for summary

judgment, identified the factual bases he contends supported that claim, including alleged

deficiencies in DML’s negotiating and drafting of the MPSA, presentation of evidence at

the March 2022 hearing, post-judgment motion practice, and deadline advice. Those

factual bases did not create a new cause of action; they clarified the alleged breaches

supporting the professional negligence claim Bellamah already pleaded. Accordingly, on

this Rule 56 record, the District Court construed Bellamah’s negligence claim too narrowly

when it confined the claim solely to DML’s failure to appeal.

¶28 Finally, DML asserts summary judgment was proper because Bellamah failed to

support his allegations of negligence with expert testimony showing a breach of the

standard of care. DML is correct in that expert testimony is generally required in

professional negligence cases to establish the standard of care and the breach of that

standard. Brookins, ¶ 63. However, it is the burden of the party seeking summary

judgment to initially show “a complete absence of any genuine issue of material fact on

the Rule 56 record and that the movant is accordingly entitled to judgment as a matter of

15 law.” Kipfinger v. Great Falls Obstetrical & Gynecology Assocs., 2023 MT 44, ¶ 14,

411 Mont. 269, 525 P.3d 1183 (citations omitted). The burden then shifts to the

non-moving party to show either the existence of a genuine issue of material fact or that

the moving party is nonetheless not entitled to judgment as a matter of law. Kipfinger,

¶ 14.

¶29 Here, expert testimony was not required for Bellamah to meet the Rule 56

responsive burden created by DML’s motion as framed. DML’s opening summary

judgment motion did not seek judgment on the full scope of Bellamah’s alleged pre-appeal

negligence; it framed the dispositive issue as whether a hypothetical appeal would have

succeeded under Richards and expressly conceded, for purposes of that argument, that

DML failed to perfect an appeal. Rather than dispute DML’s showing as to the likelihood

of success on appeal, Bellamah pointed to numerous allegations which DML failed to

address in its motion. These allegations establish that (1) Bellamah’s negligence claim was

not solely based on the firm’s failure to appeal and was therefore not an issue of law but

an issue of fact not suitable for summary judgment, and (2) other genuine issues of material

fact existed as to the numerous allegations left unaddressed by DML. While DML

addressed some of Bellamah’s additional allegations in its Reply Brief in Support of

Motion for Summary Judgment, Bellamah did not have an opportunity to respond to these

arguments and the evidence DML raised. See WLW Realty Partners, LLC v. Cont’l

Partners VIII, LLC, 2015 MT 312, ¶ 20, 381 Mont. 333, 360 P.3d 1112 (noting fairness to

the parties generally dictates that district courts not grant summary judgment to moving

party based on legal or evidentiary arguments raised for the first time in reply briefs); Tags

16 Realty, LLC v. Runkle, 2015 MT 166, ¶ 10, 379 Mont. 416, 352 P.3d 616 (holding summary

judgment improper where non-movant did not have opportunity to respond). Requiring

Bellamah to have produced expert testimony in response to DML’s principal brief would

put the cart miles ahead of the horse. Summary judgment is not a procedural device that

allows a movant to narrowly address a single allegation under an inapplicable legal theory

as a means of forcing a non-movant to fully try their case before discovery has even closed.

Accordingly, Bellamah met the Rule 56 burden in responding to DML’s motion for

summary judgment, which had been narrowly framed around an inapplicable theory of

causation.

CONCLUSION

¶30 Bellamah’s claim of negligence was not solely based on DML’s failure to appeal

but encompassed numerous allegations of pre-appeal negligent conduct. Not only did these

allegations preclude application of Richards, but genuine issues of fact precluded summary

judgment as to DML’s negligence. Accordingly, the District Court erred in granting

summary judgment to DML. We therefore reverse and remand for further proceedings.

/S/ INGRID GUSTAFSON

We Concur:

/S/ CORY J. SWANSON /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ KATHERINE M. BIDEGARAY /S/ JIM RICE

Justice Beth Baker has recused herself and has not participated in this matter.