08/02/2016
DA 16-0057 Case Number: DA 16-0057
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 187N
MICHAEL ELLENBURG,
Plaintiff and Appellant,
v.
T. WILSON, L. MURPHY, D. PENTLAND, K. COZBY, L. MIHELICH, V. HOSCHIED, et al.
Defendants and Appellees.
APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV-14-11 Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael Ellenburg, Self-Represented, Deer Lodge, Montana
For Appellee:
Ira Eakin, Special Assistant Attorney General, Montana Department of Corrections, Helena, Montana
Submitted on Briefs: June 15, 2016
Decided: August 2, 2016
Filed:
__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Michael Ellenburg appeals a memorandum and order of the Third Judicial District
Court, Powell County, granting a “Motion to Enforce Settlement Agreement” filed by
Montana Department of Corrections (DOC) employees Tom Wilson, Linda Murphy,
David Pentland, Ken Cozby, Leonard Mihelich,1 and Vera Hoschied (collectively, “DOC
Defendants”). We address whether the District Court properly granted the DOC
Defendants’ motion. We affirm.
¶3 Ellenburg is an inmate at the Montana State Prison (MSP). In January 2014,
Ellenburg filed a complaint against the DOC Defendants, claiming, among other things,
that he was denied adequate due process in prison disciplinary proceedings, adversely
affecting his chances for parole. The DOC Defendants denied Ellenburg’s allegations.
On June 2, 2015, the parties entered into a settlement agreement, which provided:
If Plaintiff maintains one hundred twenty (120) days of accumulated clear conduct within [MSP] a designated [MSP] official will submit a parole plan for Plaintiff which requests an in person appearance for Plaintiff before the Montana Board of Pardons and Parole [(Board)], . . . The parole plan will contain the following language: “The inmate’s past year of discipline is not relevant to the inmate’s likely success on parole, and for purposes of this plan will be disregarded and will not be discussed.” Further, the parole
1 The District Court case caption misspelled “Mihelich.” We have corrected this error on appeal.
2 plan will not contain any information concerning Plaintiff’s disciplinary record during the preceding twelve months. [MSP] will not issue any frivolous or unwarranted write ups to the Plaintiff.
The settlement agreement further provided that Ellenburg would dismiss four pending
lawsuits against the DOC Defendants, the DOC, MSP, and other employees of the DOC
or MSP.2 Ellenburg accumulated 120 days of clear conduct on July 8, 2015. He
appeared before the Board on August 27, 2015. The Board denied Ellenburg’s parole
request but endorsed him for placement at a pre-release center. In August and September
2015, Ellenburg filed documents in the District Court alleging that the DOC Defendants
breached the settlement agreement. In response, the DOC Defendants filed a motion to
enforce the agreement by requiring Ellenburg to dismiss his pending lawsuits. The
District Court granted the DOC Defendants’ motion, interpreting it as a motion for
summary judgment.
¶4 “We review summary judgment orders de novo.” Mont. Dep’t of Revenue v.
Priceline.com, Inc., 2015 MT 241, ¶ 6, 380 Mont. 352, 354 P.3d 631. Summary
judgment is appropriate when the moving party demonstrates an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. M. R. Civ. P.
56(c)(3). “Settlement agreements are contracts,” Murphy v. Home Depot, 2012 MT 23,
¶ 8, 364 Mont. 27, 270 P.3d 72, and “[t]he existence of a valid express contract is a
question of law,” which we review for correctness. Lockhead v. Weinstein, 2003 MT
360, ¶ 7, 319 Mont. 62, 81 P.3d 1284.
2 These cases include Powell County cause numbers DV 14-11, DV 15-13, DV 15-17, and United States District Court cause number CV-00080-DLC-JTJ.
3 ¶5 Ellenburg maintains on appeal that he is not required to dismiss his pending
lawsuits because the DOC defendants breached the settlement agreement in various ways.
First, Ellenburg contends that the DOC Defendants breached the agreement by not
scheduling him to appear before the Board in July. The settlement agreement does not
specify a date or time frame for Ellenburg’s appearance before the Board. Pursuant to
§ 28-3-601, MCA, which governs the interpretation of contracts, “[i]f no time is specified
for the performance of an act required to be performed, a reasonable time is allowed.”
Via email, former DOC staff attorney McKenzie McCarthy informed Ted Mizner, the
mediator who presided over the settlement agreement, that Ellenburg could not appear
before the Board in July because, by the time he accumulated his 120 days of clear
conduct, the Board’s schedule was set for the entire month. McCarthy indicated that the
Board needed to set the schedule in advance to allow time to prepare for the hearings.
Therefore, the earliest that Ellenburg could appear before the Board was August.
Ellenburg does not dispute these facts. Given the Board’s need to adhere to scheduling
procedures, Ellenburg’s hearing was scheduled for the earliest possible month. His
appearance before the Board thus was within a reasonable time of his accumulation of
120 days of clear conduct.
¶6 Ellenburg next contends that the DOC Defendants violated the settlement
agreement because a parole report submitted by Meaghan Mulcahy, a parole analyst for
the Board, provides: “Since his last appearance, Ellenburg has accrued numerous write
ups but is appearing today with clear conduct.” According to an affidavit filed by
McCarthy, Mizner informed Ellenburg that the DOC could not order the Board to take
4 any action or bind the Board as part of the settlement discussions. A separate parole
report filed by Irl Lambertson, Ellenburg’s prison case manager, provides: “The inmate’s
past year of discipline is not relevant to the inmate’s likely success on parole, and for
purposes of this plan will be disregarded and will not be discussed.” The most recent
information regarding Ellenburg’s disciplinary record contained in Lambertson’s report is
from May 2014. Lambertson’s report thus conforms to the settlement agreement’s
requirement that “a designated [MSP] official will submit a parole plan,” containing
specific language, and not containing any information concerning Ellenburg’s
disciplinary record during the preceding twelve months.
¶7 Ellenburg also contends that the settlement agreement does not contain a
certificate of service. However, contracts do not need to be formally served to be legally
binding. Rather, “[a] party to a settlement agreement is bound if he or she manifested
assent to the agreement’s terms . . . .” Murphy, ¶ 8. Formal service thus was not required
for the settlement agreement to be valid and binding.
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08/02/2016
DA 16-0057 Case Number: DA 16-0057
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 187N
MICHAEL ELLENBURG,
Plaintiff and Appellant,
v.
T. WILSON, L. MURPHY, D. PENTLAND, K. COZBY, L. MIHELICH, V. HOSCHIED, et al.
Defendants and Appellees.
APPEAL FROM: District Court of the Third Judicial District, In and For the County of Powell, Cause No. DV-14-11 Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Michael Ellenburg, Self-Represented, Deer Lodge, Montana
For Appellee:
Ira Eakin, Special Assistant Attorney General, Montana Department of Corrections, Helena, Montana
Submitted on Briefs: June 15, 2016
Decided: August 2, 2016
Filed:
__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Michael Ellenburg appeals a memorandum and order of the Third Judicial District
Court, Powell County, granting a “Motion to Enforce Settlement Agreement” filed by
Montana Department of Corrections (DOC) employees Tom Wilson, Linda Murphy,
David Pentland, Ken Cozby, Leonard Mihelich,1 and Vera Hoschied (collectively, “DOC
Defendants”). We address whether the District Court properly granted the DOC
Defendants’ motion. We affirm.
¶3 Ellenburg is an inmate at the Montana State Prison (MSP). In January 2014,
Ellenburg filed a complaint against the DOC Defendants, claiming, among other things,
that he was denied adequate due process in prison disciplinary proceedings, adversely
affecting his chances for parole. The DOC Defendants denied Ellenburg’s allegations.
On June 2, 2015, the parties entered into a settlement agreement, which provided:
If Plaintiff maintains one hundred twenty (120) days of accumulated clear conduct within [MSP] a designated [MSP] official will submit a parole plan for Plaintiff which requests an in person appearance for Plaintiff before the Montana Board of Pardons and Parole [(Board)], . . . The parole plan will contain the following language: “The inmate’s past year of discipline is not relevant to the inmate’s likely success on parole, and for purposes of this plan will be disregarded and will not be discussed.” Further, the parole
1 The District Court case caption misspelled “Mihelich.” We have corrected this error on appeal.
2 plan will not contain any information concerning Plaintiff’s disciplinary record during the preceding twelve months. [MSP] will not issue any frivolous or unwarranted write ups to the Plaintiff.
The settlement agreement further provided that Ellenburg would dismiss four pending
lawsuits against the DOC Defendants, the DOC, MSP, and other employees of the DOC
or MSP.2 Ellenburg accumulated 120 days of clear conduct on July 8, 2015. He
appeared before the Board on August 27, 2015. The Board denied Ellenburg’s parole
request but endorsed him for placement at a pre-release center. In August and September
2015, Ellenburg filed documents in the District Court alleging that the DOC Defendants
breached the settlement agreement. In response, the DOC Defendants filed a motion to
enforce the agreement by requiring Ellenburg to dismiss his pending lawsuits. The
District Court granted the DOC Defendants’ motion, interpreting it as a motion for
summary judgment.
¶4 “We review summary judgment orders de novo.” Mont. Dep’t of Revenue v.
Priceline.com, Inc., 2015 MT 241, ¶ 6, 380 Mont. 352, 354 P.3d 631. Summary
judgment is appropriate when the moving party demonstrates an absence of a genuine
issue of material fact and entitlement to judgment as a matter of law. M. R. Civ. P.
56(c)(3). “Settlement agreements are contracts,” Murphy v. Home Depot, 2012 MT 23,
¶ 8, 364 Mont. 27, 270 P.3d 72, and “[t]he existence of a valid express contract is a
question of law,” which we review for correctness. Lockhead v. Weinstein, 2003 MT
360, ¶ 7, 319 Mont. 62, 81 P.3d 1284.
2 These cases include Powell County cause numbers DV 14-11, DV 15-13, DV 15-17, and United States District Court cause number CV-00080-DLC-JTJ.
3 ¶5 Ellenburg maintains on appeal that he is not required to dismiss his pending
lawsuits because the DOC defendants breached the settlement agreement in various ways.
First, Ellenburg contends that the DOC Defendants breached the agreement by not
scheduling him to appear before the Board in July. The settlement agreement does not
specify a date or time frame for Ellenburg’s appearance before the Board. Pursuant to
§ 28-3-601, MCA, which governs the interpretation of contracts, “[i]f no time is specified
for the performance of an act required to be performed, a reasonable time is allowed.”
Via email, former DOC staff attorney McKenzie McCarthy informed Ted Mizner, the
mediator who presided over the settlement agreement, that Ellenburg could not appear
before the Board in July because, by the time he accumulated his 120 days of clear
conduct, the Board’s schedule was set for the entire month. McCarthy indicated that the
Board needed to set the schedule in advance to allow time to prepare for the hearings.
Therefore, the earliest that Ellenburg could appear before the Board was August.
Ellenburg does not dispute these facts. Given the Board’s need to adhere to scheduling
procedures, Ellenburg’s hearing was scheduled for the earliest possible month. His
appearance before the Board thus was within a reasonable time of his accumulation of
120 days of clear conduct.
¶6 Ellenburg next contends that the DOC Defendants violated the settlement
agreement because a parole report submitted by Meaghan Mulcahy, a parole analyst for
the Board, provides: “Since his last appearance, Ellenburg has accrued numerous write
ups but is appearing today with clear conduct.” According to an affidavit filed by
McCarthy, Mizner informed Ellenburg that the DOC could not order the Board to take
4 any action or bind the Board as part of the settlement discussions. A separate parole
report filed by Irl Lambertson, Ellenburg’s prison case manager, provides: “The inmate’s
past year of discipline is not relevant to the inmate’s likely success on parole, and for
purposes of this plan will be disregarded and will not be discussed.” The most recent
information regarding Ellenburg’s disciplinary record contained in Lambertson’s report is
from May 2014. Lambertson’s report thus conforms to the settlement agreement’s
requirement that “a designated [MSP] official will submit a parole plan,” containing
specific language, and not containing any information concerning Ellenburg’s
disciplinary record during the preceding twelve months.
¶7 Ellenburg also contends that the settlement agreement does not contain a
certificate of service. However, contracts do not need to be formally served to be legally
binding. Rather, “[a] party to a settlement agreement is bound if he or she manifested
assent to the agreement’s terms . . . .” Murphy, ¶ 8. Formal service thus was not required
for the settlement agreement to be valid and binding.
¶8 Finally, Ellenburg contends that MSP officials issued frivolous write-ups, and that
the DOC Defendants evaded discovery requests. However, Ellenburg does not cite to
any allegedly frivolous write-ups in the record, as required by M. R. App. P. 12(1)(d).
Moreover, as the DOC Defendants point out, whatever disciplinary write-up Ellenburg
may have received was disregarded by MSP officials for purposes of calculating
Ellenburg’s 120 days of clear conduct and was not included or mentioned in his parole
report. Similarly, Ellenburg does not specify how the DOC Defendants allegedly evaded
discovery requests, and does not cite to the record to support this argument. A review of
5 Ellenburg’s appellate brief thus fails to clarify what specific write-ups or discovery
responses he takes issue with. Accordingly, we will not consider these arguments. See
M. R. App. P. 12(1)(d).
¶9 Ellenburg clearly manifested intent to be bound by the settlement agreement when
he signed it, and again when he filed suit alleging the DOC Defendants breached it. Even
if Ellenburg now contends that the settlement agreement is not binding on him, “[a]
party’s latent intention not to be bound does not prevent the formation of a binding
contract.” Hetherington v. Ford Motor Co., 257 Mont. 395, 399, 849 P.2d 1039, 1042
(1993). The District Court correctly found that a valid, enforceable contract existed
between Ellenburg and the DOC Defendants. See Murphy, ¶ 8. Ellenburg has not shown
that the DOC Defendants breached any of the settlement agreement’s terms. The DOC
Defendants have shown that Ellenburg has not dismissed his pending lawsuits as required
by the settlement agreement. The District Court did not err in enforcing the settlement
agreement.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. In the opinion
of the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review. The District Court’s interpretation and
application of the law were correct, and its findings of fact are not clearly erroneous. We
affirm.
/S/ JAMES JEREMIAH SHEA
6 We Concur:
/S/ JIM RICE /S/ PATRICIA COTTER /S/ BETH BAKER /S/ LAURIE McKINNON