09/29/2020
DA 19-0647 Case Number: DA 19-0647
IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 245N
BRIAN MOORE,
Plaintiff and Appellant,
v.
KEVIN R. FROST,
Defendant and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV-18-278 Honorable Howard F. Recht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian Moore, Self-Represented, Hamilton, Montana
For Appellee:
Ross D. Tillman, Tyler M. Stockton, Boone Karlberg P.C., Missoula, Montana
Submitted on Briefs: July 15, 2020
Decided: September 29, 2020
Filed:
sr---6ma•—•f __________________________________________ Clerk Justice Laurie McKinnon 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 Brian Moore (Moore) appeals from an Opinion and Order, dated
October 22, 2019, from the Twenty-First Judicial District Court, Ravalli County, granting
defendant’s motion for summary judgment and defendant’s motion to strike Moore’s
affidavits, and awarding costs to the defendant. We affirm.
¶3 This case arises from Moore’s allegation that Kevin Frost (Frost) entered Moore’s
property in the summer of 2015 and shot two rounds from his rifle, which ultimately hit
Moore’s boat. Following those events, in July 2018, Moore, appearing pro se, filed a
civil action against Frost alleging seven different counts, including: intentional infliction
of emotional distress; actual malice; negligence; gross negligence; negligent infliction of
emotional distress; trespass; and punitive damages. Frost moved to dismiss the claims of
actual malice, trespass, and punitive damages, which the District Court granted in
August 2018. In June 2019, Frost moved for summary judgment on all of Moore’s
remaining claims. Immediately prior to oral argument, Moore filed two affidavits by
Sherri Frost—Frost’s ex-wife—in the District Court; the second of which was not served
upon Frost prior to oral argument. After oral argument, Moore attempted to file
additional affidavits, including a summary judgment affidavit. On October 22, 2019, the
2 District Court entered an order allowing Moore’s summary judgment affidavit to be
considered; that Sherri Frost’s affidavits not be considered because they were not timely
filed; and, finally, granted Frost’s motion for summary judgment on all the remaining
claims.
¶4 Moore appeals the District Court’s order. Moore first argues that the
District Court erred in granting Frost’s motion for summary judgment. Moore’s second
argument asserts that the District Court erred in excluding specific evidentiary findings
that were beneficial to his case, particularly the affidavits of Sherri Frost. Finally, Moore
argues that the District Court abused its discretion in awarding costs to Frost.
¶5 This Court will review an order granting summary judgement de novo.
M. R. Civ. P. 56(c)(3), provides: “the judgment sought should be rendered if 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.” The moving party has the initial burden of establishing
both the absence of any genuine issues as to any material fact and entitlement to
judgment as a matter of law. Estate of Willson v. Addison, 2011 MT 179, ¶ 13,
361 Mont. 269, 258 P.3d 410. Once the moving party meets this initial burden, the party
opposing summary judgment must present substantial evidence, as opposed to mere
denial, speculation, or conclusory statements, raising a genuine issue of material fact.
Estate of Willson, ¶ 14.
¶6 On appeal, Moore asserts that the District Court incorrectly granted Frost’s motion
for summary judgment pertaining to the claims of negligence, gross negligence,
3 negligent infliction of emotional distress, and intentional infliction of emotional distress.
The negligence claims and the emotional distress claims will be discussed separately.
Negligence Claims
¶7 It is well established that “if the plaintiff fails to offer proof on any one of the four
elements of negligence, then summary judgment in favor of the defendant is proper.”
Peterson v. Eichhorn, 2008 MT 250, ¶ 24, 344 Mont. 540, 189 P.3d 615. Here, to meet
his initial burden, Frost presented sworn, admissible evidence that he did not shoot at
Moore’s boat; he was not at Moore’s residence on the morning of the shooting; that
investigating law enforcement did not determine who shot Moore’s boat; and that Moore
had not produced admissible evidence in support of his claim that Frost shot at the boat,
aside from the presentation of his own affidavit. After considering this evidence, the
District Court held that Frost met his initial burden of proving the absence of any issues
of material fact that could establish the elements of negligence: a legal duty he owed
Moore, a breach of that duty, and causation of damages to Moore’s boat.
¶8 When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading; rather,
its response must set out specific facts showing a genuine issue for trial.
See M. R. Civ. P. 56(e)(2). Here, Moore’s failure to present any evidence to connect
Frost to the boat shooting, to establish Frost’s presence at Moore’s house at the time of
the shooting, or to present any other supporting evidence aside from speculation within
Moore’s own affidavit, established that Moore failed to meet his burden to defeat
summary judgment relating to the negligence claims.
4 Emotional Distress Claims
¶9 A plaintiff’s independent claim for intentional or negligent infliction of emotional
distress can be maintained only upon a showing the plaintiff suffered “serious” or
“severe” emotional distress as the reasonably foreseeable consequence of the defendant’s
act or omission. Puryer v. HSBC Bank USA, Nat’l Ass’n, 2018 MT 124, ¶ 38,
391 Mont. 361, 419 P.3d 105. Thus, if a plaintiff presents evidence on which serious or
severe emotional distress can be found, then his emotional distress claims must go to a
jury to determine whether severe emotional distress in fact existed.
¶10 Again, Frost moved for summary judgment on Moore’s emotional distress claims,
arguing that Moore’s claims failed because Moore did not provide any evidence that
Frost engaged in conduct that caused Moore’s emotional distress or that Moore suffered
emotional distress so severe that no reasonable person could be expected to endure it.
Frost produced evidence, unrebutted by Moore, that Moore was not at his residence
during the shooting; there was no indication that Moore was suffering from emotional
distress when investigative law enforcement arrived at the scene; and there was no
evidence that Moore exhibited any physical manifestations or sought counseling to
address any emotional distress caused by the shooting. In reviewing the record, the
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09/29/2020
DA 19-0647 Case Number: DA 19-0647
IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 245N
BRIAN MOORE,
Plaintiff and Appellant,
v.
KEVIN R. FROST,
Defendant and Appellee.
APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DV-18-278 Honorable Howard F. Recht, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Brian Moore, Self-Represented, Hamilton, Montana
For Appellee:
Ross D. Tillman, Tyler M. Stockton, Boone Karlberg P.C., Missoula, Montana
Submitted on Briefs: July 15, 2020
Decided: September 29, 2020
Filed:
sr---6ma•—•f __________________________________________ Clerk Justice Laurie McKinnon 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 Brian Moore (Moore) appeals from an Opinion and Order, dated
October 22, 2019, from the Twenty-First Judicial District Court, Ravalli County, granting
defendant’s motion for summary judgment and defendant’s motion to strike Moore’s
affidavits, and awarding costs to the defendant. We affirm.
¶3 This case arises from Moore’s allegation that Kevin Frost (Frost) entered Moore’s
property in the summer of 2015 and shot two rounds from his rifle, which ultimately hit
Moore’s boat. Following those events, in July 2018, Moore, appearing pro se, filed a
civil action against Frost alleging seven different counts, including: intentional infliction
of emotional distress; actual malice; negligence; gross negligence; negligent infliction of
emotional distress; trespass; and punitive damages. Frost moved to dismiss the claims of
actual malice, trespass, and punitive damages, which the District Court granted in
August 2018. In June 2019, Frost moved for summary judgment on all of Moore’s
remaining claims. Immediately prior to oral argument, Moore filed two affidavits by
Sherri Frost—Frost’s ex-wife—in the District Court; the second of which was not served
upon Frost prior to oral argument. After oral argument, Moore attempted to file
additional affidavits, including a summary judgment affidavit. On October 22, 2019, the
2 District Court entered an order allowing Moore’s summary judgment affidavit to be
considered; that Sherri Frost’s affidavits not be considered because they were not timely
filed; and, finally, granted Frost’s motion for summary judgment on all the remaining
claims.
¶4 Moore appeals the District Court’s order. Moore first argues that the
District Court erred in granting Frost’s motion for summary judgment. Moore’s second
argument asserts that the District Court erred in excluding specific evidentiary findings
that were beneficial to his case, particularly the affidavits of Sherri Frost. Finally, Moore
argues that the District Court abused its discretion in awarding costs to Frost.
¶5 This Court will review an order granting summary judgement de novo.
M. R. Civ. P. 56(c)(3), provides: “the judgment sought should be rendered if 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.” The moving party has the initial burden of establishing
both the absence of any genuine issues as to any material fact and entitlement to
judgment as a matter of law. Estate of Willson v. Addison, 2011 MT 179, ¶ 13,
361 Mont. 269, 258 P.3d 410. Once the moving party meets this initial burden, the party
opposing summary judgment must present substantial evidence, as opposed to mere
denial, speculation, or conclusory statements, raising a genuine issue of material fact.
Estate of Willson, ¶ 14.
¶6 On appeal, Moore asserts that the District Court incorrectly granted Frost’s motion
for summary judgment pertaining to the claims of negligence, gross negligence,
3 negligent infliction of emotional distress, and intentional infliction of emotional distress.
The negligence claims and the emotional distress claims will be discussed separately.
Negligence Claims
¶7 It is well established that “if the plaintiff fails to offer proof on any one of the four
elements of negligence, then summary judgment in favor of the defendant is proper.”
Peterson v. Eichhorn, 2008 MT 250, ¶ 24, 344 Mont. 540, 189 P.3d 615. Here, to meet
his initial burden, Frost presented sworn, admissible evidence that he did not shoot at
Moore’s boat; he was not at Moore’s residence on the morning of the shooting; that
investigating law enforcement did not determine who shot Moore’s boat; and that Moore
had not produced admissible evidence in support of his claim that Frost shot at the boat,
aside from the presentation of his own affidavit. After considering this evidence, the
District Court held that Frost met his initial burden of proving the absence of any issues
of material fact that could establish the elements of negligence: a legal duty he owed
Moore, a breach of that duty, and causation of damages to Moore’s boat.
¶8 When a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading; rather,
its response must set out specific facts showing a genuine issue for trial.
See M. R. Civ. P. 56(e)(2). Here, Moore’s failure to present any evidence to connect
Frost to the boat shooting, to establish Frost’s presence at Moore’s house at the time of
the shooting, or to present any other supporting evidence aside from speculation within
Moore’s own affidavit, established that Moore failed to meet his burden to defeat
summary judgment relating to the negligence claims.
4 Emotional Distress Claims
¶9 A plaintiff’s independent claim for intentional or negligent infliction of emotional
distress can be maintained only upon a showing the plaintiff suffered “serious” or
“severe” emotional distress as the reasonably foreseeable consequence of the defendant’s
act or omission. Puryer v. HSBC Bank USA, Nat’l Ass’n, 2018 MT 124, ¶ 38,
391 Mont. 361, 419 P.3d 105. Thus, if a plaintiff presents evidence on which serious or
severe emotional distress can be found, then his emotional distress claims must go to a
jury to determine whether severe emotional distress in fact existed.
¶10 Again, Frost moved for summary judgment on Moore’s emotional distress claims,
arguing that Moore’s claims failed because Moore did not provide any evidence that
Frost engaged in conduct that caused Moore’s emotional distress or that Moore suffered
emotional distress so severe that no reasonable person could be expected to endure it.
Frost produced evidence, unrebutted by Moore, that Moore was not at his residence
during the shooting; there was no indication that Moore was suffering from emotional
distress when investigative law enforcement arrived at the scene; and there was no
evidence that Moore exhibited any physical manifestations or sought counseling to
address any emotional distress caused by the shooting. In reviewing the record, the
District Court correctly held that Moore was unable to meet his threshold burden to show
that Frost was the cause of his alleged emotional distress or that he suffered severe
emotional distress.
¶11 Moore’s second argument asserts that the District Court erred in striking
Sherri Frost’s affidavits. M. R. Civ. P. 56(c)(1)(B), provides that a party opposing a
5 motion must file a response, and any opposing affidavits, within 21 days after the motion
is served or a responsive pleading is due. This Court has held “it is reasonable to expect
all litigants, including those acting pro se, to adhere to the procedural rules.” Cox v.
Magers, 2018 MT 21, ¶ 15, 390 Mont. 224, 411 P.3d 1271.
¶12 Moore knew he was required to file his opposing affidavits with his response, but
claimed he thought he had until trial to file affidavits. After filing his response, the
District Court instructed Moore that he was not to file additional documents without first
obtaining leave of court. The record establishes that Moore disregarded the court’s
instruction and filed Sherri Frost’s two affidavits, one of which had not been received by
the defense before oral argument. As the District Court stated, the rule is clear.
Although some leeway is allowed for pro se litigants, pro se litigants must still adhere to
procedural rules and orders of the court. The District Court did not err by striking the
affidavits of Sherri Frost. Furthermore, even if the affidavits had been considered, the
affidavits contained only speculative information and were not based upon personal
information of Sherri Frost.
¶13 Moore’s final argument asserts that the District Court erred in granting court costs
to Frost and that the imposition of costs was a gross injustice. A district court must
award costs when judgment is entered in the defendant’s favor.
Section 25-10-102, MCA. The bill of costs must be itemized and detailed, listing claims
for court fees, depositions, and motions, which are all expressly allowed by statute.
Sections 25-10-201, -202, MCA.
6 ¶14 Here, the costs were detailed and timely provided pursuant to Montana law. In
addition, Moore was provided with the opportunity to object to the costs, but instead
asserted that the American Rule barred any imposition of costs. However, the American
Rule pertains to the notion that each side must pay their own attorney fees, regardless of
the outcome. Frost, in detailing costs, did not seek payment of his attorney fees, rather
only the costs to which he was statutorily entitled to as the prevailing party. Thus, this
Court cannot find a basis that the District Court erred in its discretion of awarding costs.
¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent.
¶16 Affirmed.
/S/ LAURIE McKINNON
We concur:
/S/ JAMES JEREMIAH SHEA /S/ DIRK M. SANDEFUR /S/ INGRID GUSTAFSON /S/ JIM RICE