No. 84-274
I N THE SUPmME COURT OH THE STATE O M N A A
F OTN
BERNICE MARTIN, a m i n o r , by LEONA
M. BERGER, h e r G u a r d i a n Ad L i t e m ,
P l a i n t i f f and A p p e l l a n t ,
STATE O MONTANA, DELORES COLBERG,
F
Superintendent of Public Instruc-
t i o n , Montana; C U T O VALLEY,
O NY F
Montana; IRMA McINERNEY, Super-
i n t e n d e n t o f S c h o o l s , V a l l e y County,
Montana; ELEMENTARY SCHOOL DISTRICT
N M E THIRTEEN ( 1 3 ) , Nashua,
U BR
V a l l e y County, Montana, e t a l .
D e f e n d a n t s and R e s p o n d e n t s .
APPEAL FROM: D i s t r i c t Court of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f V a l l e y ,
The H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g ,
COUNSEL O RECORD:
F
For A p p e l l a n t :
R u s s e l l A . L a v i g n e , J r . , a r g u e d , Montana L e g a l
Seruices, H e l e n a , Montana
For Respondents:
Anderson, Brown, G e r b a s e , C e b u l l & J o n e s ; Richard
C e b u l l a r g u e d f o r S t a t e , B i l l i n g s , Montana
Smith Law Firm; Chadwick S m i t h a r g u e d f o r S c h o o l
D i s t r i c t # 1 3 , H e l e n a , Montana
David N i e l s o n , County A t t o r n e y , a r g u e d , Glasgow,
Montana
James P . L u c a s , ( J o n e s ) , M i l e s C i t y , Montana
Submitted: J a n u a r y 23, 1985
Decided: March 7 , 1985
Clerk
Mr. Chief J u s t i c e J. A. Turnage d e l i v e r e d t h e Opinion of t h e
Court.
P l a i n t i f f , a minor, through h e r f o s t e r mother, appeals
from an o r d e r of t h e D i s t r i c t Court o f t h e S e v e n t e e n t h J u d i -
cial. D i s t r i c t , V a l l e y County, of May 7 , 1984, g r a n t i n g mo-
t i o n s f o r summary judgment by d e f e n d a n t s S t a t e of Montana and
Dol-cres C o l b e r g ; Elementary School D i s t r i c t Number T h i r t e e n
( 1 3 ) ; Nashua, Valley County, Montana; and William Jones,
psychologist. W e a f f i r m t h e lower c o u r t o r d e r .
The c h i l d ' s c l a i m f o r damages from h e r placement i n a
s p e c i a , e d u c a t i o n program i n 1.973 f i r s t came b e f o r e t h e C o u r t
i n an a p p e a l of a p r e v i o u s o r d e r of November 2 0 , 1980, g r a n t -
i n g motions for summary judgment. B. M. v. Sta.te (~ont.
1 9 8 2 ) , 649 P.2d 425, 39 St.Rep. 1285. This Court h e l d t h a t
t h e S t a t e i s n o t p r o t e c t e d by immunity and owes a d u t y of
reasonable care in placing students in special education
programs. W a f f i r m e d t h e d i s m i - s s a l of due p r o c e s s and e q u a l
e
protection cla.ims and remanded for further proceedings.
W h o l d now t h a t t h e lower c o u r t ' s second o r d e r of May
e
7, 1984, was g r a n t e d s q u a r e l y on t h e i s s u e o f damages and
t h a t p l a i - n t i f f / a p p e l l a n t f a i l e d t o m e e t t h e burden s h i f t e d t o
h e r under Rule 5 6 , M.R.Civ.P., t o r a i s e a g e n u i n e i s s u e of
m a t e r i a l f a c t w i t h r e s p e c t t o t h e c l a i m f o r damages.
F o l l o w i n g remand, both p a r t i e s issued i n t e r r o g a t o r i e s ,
answers, depositions, production of docu.ments, m o t i o n s and
supporting b r i e f s . The t r i a l judge examined the evidence
p r e s e n t e d upon di.scovery and found c l e a r admissj-ons by t h e
plaintiff and h e r g u a r d i a n i n t h e i r d e p o s i t i o n s t h a t no r e a l
i n j u r y had been s u f f e r e d . Although t h e S t a t e mentioned t h e s e
depositions in support of i t s motion, plaintiff did not
respond by affidavit or by reference to any sworn discovery
to raise an issue of fact that was not conclusory or specula-
tive regarding the alleged injury.
The lower court entered its May 7, 1984, order which
granted the relief solely "on the grounds that there is no
genuine issue as to any material fact with respect to the
claim for damages contained i.n Plaintiff's Second Amended
Complaint. . . ." The lower court dismissed the complaint
with preiudice.
Appellant/plaintiff raises the following issues:
1. Did the lower court err in granting the motion for
summary judgmen.t?
2. Was expert testimony required to prove causation
and damages?
3. Did the second amended complaint state a cause of
a-ctionagainst defendant Valley County?
4. Does the "law of the present case" doctrine
preclude granting summary judgment?
The first issue on the propriety of summa-ry judgment is
dispositi~reof the case, and the remaining three issues are
peripheral.
Rule 56, M.R.Civ.P., presents procedure and protection
for both parties in motions for summary judgment. The motion
shall be served at least ten days before the hearing, and. the
adverse party may serve opposing affidavits.
"Motion Proceedings thereon. ...
The judgment sought shal.1 be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, and admis-
sions on file, together with the affida-
vits, if any, show that there is no
genuine issue as to any material fact and
that the movi-ng party is entitled to a
judqment as a matter of law." Rule
56 (c), M.R.Civ.P.
"Form of affidavits -- further testimony
-- defense required. Su-pporting and
opposing affidavits shall be made on
personal knowledge, shall set forth such
facts as would be admissible in evidence,
and shall show affirmatively that the
affiant is competent to testify to the
matters stated therein. ... The court
may permit affidavits to be supplemented
or opposed by depositions, answers to
interrogatories, or further affidavits.
When a motion for summary judgment is
made and supported as provided in the
rule, an adverse party may - - upon
not rest
the - alleqations or denials - -
- meye of his
pleadinq, - - respo=e,
but his affidavits
- - otherwise ~rovided - - - rule.
or as in this
- there - - genuine issue for trial.
must - forth specific facts showing
that
set
is a
If - - -not so respond, summary judq-
- he does -
ment, if appropriate, shall - entered
be
against-him. " Rule 56 (e), M.R.Civ.P.
(Emphasis added. )
This Court has long established precedent on the re-
quirenents of Rule 56, M.R.Civ.P., on the burden of proof.
The initial burden of establishing the absence of any issue
of material fact is on the party seeking summary judgment.
But where the record discloses no genuine issue as to any
material fact, then the burden shifts to the party opposing
the motion to present evidence of a material and substantial
nature to raise a genuine issue of fact. Roope et al. v. The
Anaconda Company (1972), 159 Mont. 28, 32, 494 P.2d 922, 924;
Mustang Beverage Co. v. Schlitz Brewing (19731, 162 Mont.
3.43, 246, 511 P.2d 1, 3; Krone v. McCann (Mont. 1 9 8 2 ) , 638
P.2d 397, 399-400, 39 St.Rep. 10, 13.
Furthermore, conclusory or speculative statements are
insufficient to raise a genuine issue of material fact.
Barich v. Ottenstror (1976), 170 Mont. 38, 42, 550 P.2d 395,
397, cited in Detert v. Lake County IMont. 1984), 674 P.2d
1097, 1100-1101, 41 St.Rep. 76, 80. Where appellant failed
to meet the burden shifted under Rule 56, M.R.Civ.P., the
court's order granting sumnary judgment was proper. Shimsky
v. Valley Credit Union (Mont. 1984), 676 P.2d 1308,
1311-1312, 41 St.Rep. 258, 262.
Here, pl.aintiff repeated the initi.al. allegations con-
tained in the complaint. She may not rest upon the mere
allegations of her pleadings but has an affirmative duty to
respond by affidavits or reference to sworn testimony with
specific facts that show there is a genuine issue for trial.
Where plaintiff presents evidence of damages which are purely
speculative, summary judgment is appropriate. Ti.teca v.
State (Mont. 1981-) , 634 P.2d 1156, 1161, 38 St.Rep. 1533,
1540.
In disposing of the issue of summary judgment, we note
that the remaining issues are moot. Expert testimony was not
required to oppose the motion on summary judgment by the
court's order. The lower court noted in an aside in the
opinion, not the order, of plaintiff's difficulty at trial
without such testimony. The summary judgment, however,
required only evidentiary response by affidavit or by refer-
ence to sworn testimony to raise more than conclusory
allegations.
It is irrelevant whether the second amended complaint
stated a cause of action because at issue j s a Rule 56,
M.Ft.Civ.P., summary judgment, not a Rule 12(b) (6),
M.R.Civ.P., motion to dismiss for failure to state a claim.
Furthermore, plaintiff claims that the "law of the present
case" doctrine governs the same issues in later stages of the
same case. Ari-zona v. California (3P83), 460 U.S. 605, 103
S.Ct. 1382, 75 L.Ed.2d 318. In B. M. v. State (Mont. 19821,
649 P.2d 425, 39 St.Rep. 1285, we reversed a different order
for summary judgment granted upon different motions and
grounded on different issues.
Affirmed.
W e concur:
Mr. Justice William E. Hunt, Sr., dissenting:
I respectful-ly dissent. Here, the trial court had
before it, evidence upon which it could base a verdict
concerning the issue of damages. For example, B.M. was
required. to repeat one year in school, an item of damages
which we have previously ruled as compensable. Graveley v.
Springer (1965), 145 Mont. 486, 490, 402 P.2d 41, 43; she
regressed. devel-opmentally by refusing to feed and dress
herself; she was called a "retard" at school, was taunted
about flunking, and suffered emotional insecurity.
Even though a judgment for damages must be supported by
evidence that is not the product of mere guess or
speculation, this Court has ruled that recovery of damases
will not be denied, even if the mathematical precision of the
figure js challenged, provided the evidence is sufficient to
afford a reasonable basis for determining the specific amount
awarded. Cremer v. Cremer Rodeo Land and Livestock Co.
(Mont. 1981), 627 P.2d 1199, 1202, 38 St.Rep. 574, 578.
The law requires only that the trier of fact exercise
calm and reasonable judament, and the amount of the award
rests of necessity in the sound discretion of the trier of
fact. When there is strong evidence of the fact of damage,
the defendant should not escape liability because the amount
of damage cannot he proven with precision. Jarussi v. Board
of Trustees, etc. (Mont. 1983), 664 P.2d 316, 318, 40 St.Rep.
720, 723.
The majority has cited Titeca v. State (Mont. 1981), 634
P.2d 1156, 38 St.Rep. 1533 for the proposition that damages
which are purely speculative can be properly defeated by
summary judgment. P?hile that point is true, Titeca is
inapposite. There, Titeca proved no damage, did not suffer a
l ~ s sof property, did not show liability, and failed to
advance any viable theory of recovery. Here, however,
counsel for B.M. did alleae irreparable damages in the
complaint and requested a specific monetary award. The
District Court erroneously ruled that evidence requiring
skilled and professional analysis to determine the cause and
extent of damage cannot be supplied by a layperson, citing
Ankeny v. Grunstead (1976), 170 Mont. 128, 135, 551 P.2d
1027, 1-031-1
032.
The District Court next erred in shifting the burden in
this summary judgment action from the respondents to R.M.
The burden shifts only when the record shows no genuine issue
for trial. In the sane depositions in which the alleged
admj.ssions occurred there is evidence wholly contrary to an
admission. The "admissions" here are actually nothing more
than selectively chosen, specific "yes" or "no" answers to
general questions concerning B.M.'s mental and physical
condition throughout a considerable period of time. In the
same depositions from which these "admissions" were selected
there is evidence in the form of answers to specific
questions that contradicts the "admissions." Where the
record contains evidence contesting other evidence it cannot
be maintained that no issue exists. The burden could not
shift here because the record showed issues for trial.
There is a catch-22 situation here. The District Court
rejected B.M. Is 1-ay testimony, ruling that expert testimony
was required, and none being presented, B.M. loses to summary
judgment. The majority, on the other hand, holds expert
testimony was - necessary, but does not recognize the lay
not
testimony, and thus again, B.M. loses to summary judgment.