No. 90-532
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
MARIE JOHNSTON,
Plaintiff and Appellant,
-vs-
AMERICAN RELIABLE INSURANCE COMPANY,
ROBERT FRANCHUK, DONNA FRANCHUK,
and JANEVA J. GALAYDA,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry G. Sehestedt, Attorney at Law, Missoula,
Montana
For Respondents:
Kim L. Ritter; Milodragovich, Dale & Dye, Missoula,
Montana (American Reliable Insurance)
Darla J. Keck; Datsopoulos, MacDonald & Lind,
Missoula, Montana (Galayda)
Submitted on Briefs: March 14, 1991
Decided: April 30, 1991
Filed:
Clerk
Justice John Conway Harrison delivered the Opinion of the Court.
Plaintiff brought this action in the District Court of
Missoula County alleging conversion and breach of contract. The
District Court granted summary judgment in favor of defendants and
plaintiff appeals. We remand this cause to the District Court with
instructions to enter the grounds for granting summary judgment in
favor of both defendants.
Appellant has presented the following issues for review on
appeal :
1) Whether the District Court erred in failing to make
findings in connection with its orders granting summary judgment
to defendants.
2) Whether the District Court erred in denying plaintiff's
motion for partial summary judgment.
On May 3, 1988, appellant Marie Johnston entered into a
written contract for the purchase of a mobile home from defendants
Robert and Donna Franchuk. The home was located on a rental lot
owned by Janeva J. Galayda. On June 22, 1988, Johnston purchased
a "Deluxe Mobile Homeowners" insurance policy from respondent
American Reliable Insurance Company (Reliable). The insurance
policy, by its terms, covered Johnston's mobile home and its
contents.
On May 6, 1988, shortly after Johnston signed the Franchuksl
purchase contract, Johnston paid Galayda the $110 monthly lot rent
and moved into the home. There was testimony that Johnston owned
and kept dogs at her home in violation of Galaydals ''no dogt1
policy. Galayda testified that Johnston refused to remove the dogs
from the property and that, on May 24, 1988, Galayda sent Johnston
a Notice of Default and to Quit based on Johnston's dogs. The
Notice of Default gave Johnston fourteen days to leave. Johnston
refused to leave and, on June 16, 1988, Galayda filed suit with the
Missoula County Justice Court requesting damages and immediate
possession of the premises. The Process was served, but Johnston
failed to respond and, on July 11, 1988, the Justice Court entered
a Default Judgment in favor of Galayda which provided Galayda with
possession of the lot.
The District Court also issued a Writ of Assistance on July
11, 1988, ordering that the Missoula County Sheriff physically
remove Johnston from the premises. The Missoula County Sheriff
served the Writ on Johnston who then vacated the premises, but left
the mobile home on the lot. Galayda alleges, in her affidavit,
that Johnston abandoned the mobile home. Based on this alleged
abandonment, Galayda served Johnston with a Notice of Abandonment
dated August 17, 1988, informing her that if the abandoned mobile
home was not removed from the premises in fifteen days, it would
be stored at Johnston's expense. Galayda sent a copy of this
Notice to the Franchuks since they had a legal interest in the
property.
On September 2, 1988, Franchuks removed the mobile home.
Johnston subsequently filed a claim for theft with Reliable, but
Reliable refused to cover her claim. Thereafter, on April 18,
1989, Johnston filed a complaint for damages with the District
Court against Reliable for breach of the insurance contract, and
against Galayda and the Franchuks for wrongful conversion.
Subsequently, defendants Franchuks filed for and were granted a
discharge in bankruptcy and have since not participated in the case
due to a bankruptcy stay. The District Court granted Reliable
summary judgment on June 19, 1990 and granted Galayda summary
judgment on June 21, 1990. Thereafter, Johnston filed a motion
requesting the court make certain findings and amend its summary
judgment. This motion was deemed denied by the lapse of forty-
five days without action by the District Court. Plaintiff appeals
from the orders granting summary judgment and from the denial of
her post-judgment motion.
The first issue is whether the District Court erred in failing
to specify the grounds for summary judgment. The District Court
summarily adjudicated this cause in favor of Galayda and Reliable
but failed to specify the grounds or rationale for the rulings.
In pertinent part Rule 52(a), M.R.Civ.P., requires:
However, any order of the court granting a motion under
Rules 12 or 56 [summary judgment rule] which is
appealable to an appellate court shall specify the
grounds therefor with sufficient particularity as to
apprise the parties and the appellate court of the
rationale underlying the ruling and this may be done in
the body of the order or in an attached opinion.
In a similar manner, this Court has stated that district courts
should state the reasons for granting summary judgment. Stepanek
v. Kober construction (1981), 191 Mont. 430, 431, 625 P.2d 51, 52.
The District Court did not specify the grounds for either of the
summary judgment rulings with sufficient particularity to apprise
the parties and the appellate court of the rationale underlying the
rulings. We therefore remand this cause to the District Court with
instructions to specify the grounds for the rulings with sufficient
particularity so as to apprise the parties and this Court of the
rationale underlying its rulings.
This cause is hereby remanded to the District Court with the
foregoing instructions to enter reasons in support of summary
adjudication.
We concur:
Chief Justice
Chief Justice J. A. Turnage, specially concurring:
I concur in the majority opinion which requires the District
Court to enter in the record its reasons for granting summary
judgment. The case is properly remanded for such purpose. In
reviewing this case upon remand, it is my suggestion that the
District Court look at the record with relation to the Justice
Court proceeding instituted by Janeva J. Galayda against the
appellant and the July 11, 1988, affidavit submitted by Galayda in
obtaining a default judgment, apparently for rent.
In part, I make this suggestion for the reason that in the
record before us, there is a complaint in Justice Court dated June
16, 1988, wherein Galayda sued Johnson for the reason "that
defendant owed back rent from July 1, 1988, in the amount of $110
plus late fee in the amount of $10 .. .I1 This complaint was dated
June 16, 1988. It is somewhat difficult to understand how back
rent could be owed from July 1, 1988, when the complaint was filed
June 16, 1988. In addition, in the deposition of Galayda at page
36, it is indicated that Galayda received a money order post-
marked July 4, 1988, covering June and July rent in the amount of
$220. Galayda stated that the money order did not include the "$10
late feel1 which was part of her rental agreements. When Galayda
was asked if Johnston had ever signed a rental agreement, Galayda
responded, "No, she did not."
This case undoubtedly is frustrating to the parties and to the
court. However, in reviewing the grant of summary judgment and in
6
the interest of justice, I recommend a thorough review of the
record.