State Ex Rel. Lovins v. Toole County

924 P.2d 693, 278 Mont. 253, 53 State Rptr. 887, 1996 Mont. LEXIS 183
CourtMontana Supreme Court
DecidedSeptember 12, 1996
Docket96-359
StatusPublished
Cited by8 cases

This text of 924 P.2d 693 (State Ex Rel. Lovins v. Toole County) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Lovins v. Toole County, 924 P.2d 693, 278 Mont. 253, 53 State Rptr. 887, 1996 Mont. LEXIS 183 (Mo. 1996).

Opinions

CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Floyd Lee Lovins appeals an order of the Ninth Judicial District Court, Toole County, granting summary judgment to Toole County and the Toole County Commissioners and imposing Rule 11, M.R.Civ.R, sanctions upon Lovins. By order dated July 30,1996, this Court affirmed the District Court’s judgment but reversed the imposition of sanctions, stating that a full opinion would follow.

We restate the issues as:

1. Whether summary judgment must be reversed because supporting affidavits filed with the court were not served upon the opposing party.

2. Whether the District Court erred in granting summary judgment.

3. Whether the court’s sanction was an abuse of discretion.

Floyd Lee Lovins, acting pro se, filed this action in the District Court in April 1996. He asked the court to stay proceedings by which the Toole County Commissioners proposed to borrow $1,700,000 through the Montana Health Facility Authority to construct an addition to Toole County Hospital and Nursing Home. The proposed addition would house administrative facilities and an outpatient and physicians’ clinic. Lovins claimed that Toole County could not borrow the money without first submitting the question to a vote of county electors as required under § 7-7-2402, MCA.

The defendants moved for summary judgment on the basis of res judicata or collateral estoppel. They asked the court to take judicial notice of a previous action, Lovins v. Toole County, Ninth Judicial District Court Cause No. DV-95-009. Lovins had filed that case a year before to prevent a proposed lease arrangement under which a private nonprofit corporation would take over operation of the hospi[256]*256tal. In that action, the court granted Lovins a writ of prohibition in August 1995.

In the present case, the District Court ruled that res judicata barred the action and that Lovins was estopped from proceeding further on this issue because he had unsuccessfully made the same legal arguments in the 1995 case. The court also ruled that § 7-6-2512(2), MCA, allows Toole County to agree to levy the tax and pledge it to payment of bonds issued under § 7-34-2411, MCA; and that § 7-6-2512(2), MCA, specifically provides that pledge of these taxes to secure bond payment cannot be used to cause the bonds to be considered indebtedness of the county for any purpose.

The court further found that Lovins had unreasonably and vexatiously multiplied the proceedings. As a sanction pursuant to Rule 11, M.R.Civ.P., and to discourage abusive litigation tactics, the court prohibited Lovins from commencing or filing any further litigation in Toole County for the next four years as a pro se litigant without first obtaining permission from a district judge.

Lovins appealed to this Court. The defendants asked, without objection by Lovins, that this appeal be considered on an expedited basis. They pointed out that the normal appellate review schedule would delay the Court’s decision beyond this year’s deadline for funding requests through the Montana Health Facility Authority. On July 30,1996, the Court issued an order affirming the District Court’s grant of summary judgment but reversing the imposition of Rule 11 sanctions and remanding “for further proceedings pursuant to our opinion in the case.”

ISSUE 1

Must summary judgment be reversed because supporting affidavits filed with the court were not served upon the opposing party?

Rule 56, M.R.Civ.R, allows a party to file affidavits in support of a motion for summary judgment. While the Rule does not specifi,-cally so state, logic and fairness dictate that affidavits so filed shall also be served on the opposing party. We take this opportunity to note for the Bench and Bar that not only is service of affidavits in support or opposition to motions for summary judgment or other substantive motions logical and fair, but also that failure to serve such affidavits may in some circumstances raise an issue of due process.

In this case, the defendants filed the affidavits of Gary Zadick and Allan Underdal in support of their motion for summary judgment, but they did not serve copies of those affidavits upon Lovins [257]*257prior to the hearing on their motion. The record shows, however, that Lovins failed to preserve his objections to the court’s alleged reliance upon the affidavits of Zadick and Underdal. Lovins raised the matter of failure to timely serve the Zadick and Underdal affidavits only in his own affidavit which was filed with his initial brief on appeal. We will not hold a district court in error for an omission which it was not given an opportunity to correct.

Moreover, a third affidavit, of Toole County Commissioner Denis Freeland, was filed with the summary judgment motion, so that the information contained in the two challenged affidavits was already before the court in another form. In his affidavit, Freeland attested to the matters discussed in the District Court’s summary judgment order. The court’s summary judgment order stated that “an affidavit” had been submitted in connection with the motion for summary judgment.

In its summary judgment order, the District Court also discussed the Resolution by which Toole County proposed the 1996 bond issue. A copy of that Resolution was attached to the Underdal affidavit. The court’s order stated that the bond issue as revealed in that Resolution was essentially the same as the issue involved in the 1995 action. However, the court also stated that there would not be an issue of material fact even if the bond issues were different.

Even assuming that the District Court considered the two challenged affidavits and that this issue was preserved, we conclude that no error has been demonstrated. We hold that, under the circumstances here presented, failure to serve the two supporting affidavits is not grounds for reversal.

ISSUE 2

Did the District Court err in granting summary judgment?

Our standard of review of a summary judgment is the same as that used by a district court — whether, pursuant to Rule 56(c), M.R.Civ.P., material issues of fact exist and whether the moving party is entitled to judgment as a matter of law. Motarie v. N. Mont. Joint Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156.

The District Court determined that res judicata barred Lovins from challenging the legality of the proposed bond on the ground that § 7-7-2402, MCA, requires the approval of the electors of the county. The court’s ruling was based on its taking judicial notice of Lovins’ 1995 action.

Section 7-7-2402, MCA, provides:

[258]*258Election required to borrow money — exceptions. (1) Except as provided in subsection (3), the board of county commissioners may not borrow money for any of the purposes mentioned in this title or for any single purpose in an amount exceeding $500,000 without:
(a) first having submitted the question of a loan to a vote of the electors of the county; and
(b) the approval of a majority of the electors of the county.

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State Ex Rel. Lovins v. Toole County
924 P.2d 693 (Montana Supreme Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
924 P.2d 693, 278 Mont. 253, 53 State Rptr. 887, 1996 Mont. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lovins-v-toole-county-mont-1996.