No. 02-221
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 210N
PETER E. VAN HAREN,
Plaintiff,
v.
CLAY BRESHEARS,
Third-Party Plaintiff and Appellant,
v.
CITY OF BILLINGS,
Third-Party Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ingrid Gustafson; Graves, Toennis & Gustafson, Billings, Montana
For Respondent:
Harlan B. Krogh, Gerry Fagan; Moulton, Bellingham, Longo & Mather,
Billings, Montana
Submitted on Briefs: July 11, 2002
Decided: September 17, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Clay Breshears filed a third-party complaint against his
employer, the City of Billings, contending the City must indemnify
and defend him in a suit filed against him by former co-worker
Peter Van Haren. The City moved for judgment on the pleadings
pursuant to Rule 12(c), M.R.Civ.P., and the Thirteenth Judicial
District Court, Yellowstone County, granted the motion. Breshears
appeals. We reverse and remand.
BACKGROUND
¶3 Van Haren sued Breshears, his former City of Billings co-
worker, for committing an “intentional and malicious” act resulting
in injury while the two were at work. Breshears subsequently
initiated a third-party claim against the City, asserting that his
alleged conduct was imputable to the City under the doctrine of
respondeat superior. This case then became a procedural nightmare.
For purposes of this opinion, we need set forth only the following
additional background.
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¶4 Van Haren sought leave to amend his complaint to add the City
as a defendant. The District Court denied the motion, determining
as a matter of law that Breshears did not commit the alleged acts
within the scope of his employment. The City subsequently moved
for judgment on the pleadings pursuant to Rule 12(c), M.R.Civ.P.,
asserting no material issue of fact remained and the court’s
determination on the scope of employment issue entitled the City to
judgment as a matter of law. Breshears opposed the motion and
argued disputed facts existed which made the scope of employment
issue a matter of fact, not law. The District Court granted the
City’s motion, finding and concluding that Breshears’ conduct was
not within the course and scope of his employment, was malicious,
and constituted the criminal offense of assault. Based on these
findings and conclusions, the District Court determined the City
need not indemnify Breshears. Breshears appeals.
DISCUSSION
¶5 The issue on appeal is whether the District Court erred in
granting the City’s motion for judgment on the pleadings pursuant
to Rule 12(c), M.R.Civ.P.
¶6 A district court’s decision on whether to grant a motion for
judgment on the pleadings is a conclusion of law. We review
conclusions of law to determine whether they are correct. See
Hedges v. Woodhouse, 2000 MT 220, ¶ 8, 301 Mont. 180, ¶ 8, 8 P.3d
109, ¶ 8.
¶7 The law relating to a trial court’s consideration of a motion
for judgment on the pleadings is well-settled in Montana. “If, on
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a motion for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of
as provided in Rule 56 . . . .” Rule 12(c), M.R.Civ.P. In other
words, if a trial court considers matters not contained in the
pleadings, it must convert a motion for judgment on the pleadings
to a motion for summary judgment. See Mathews v. Glacier General
Assur. Co. (1979), 184 Mont. 368, 375-76, 603 P.2d 232, 236-37. In
such an event, the court must give all parties a “reasonable
opportunity to present all material made pertinent to such a motion
by Rule 56.” Rule 12(c), M.R.Civ.P. Moreover, the language in
Rule 12(c) regarding “conversion” to a Rule 56 motion is identical
to that contained in Rule 12(b), and, as a result, the “conversion”
requirements under both subsections of Rule 12 are the same. See
Bretz v. Ayers (1988), 232 Mont. 132, 136, 756 P.2d 1115, 1118.
Consequently, before a trial court can convert a Rule 12(c) motion
to a Rule 56 motion, it must give the parties formal notice of its
intent to do so in order that the parties have the opportunity to
present all pertinent facts and avoid surprise. See Hoveland v.
Petaja (1992), 252 Mont. 268, 271, 828 P.2d 392, 393-94.
¶8 In ruling on the City’s motion for judgment on the pleadings
in the present case, the District Court stated it was giving
Breshears “the benefit of any doubt concerning discovery and all
other content of the court file. . . .” Thus the court clearly
considered matters outside the pleadings. In doing so, it
essentially converted the motion to a Rule 56 motion. However, the
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court failed to give notice to the parties that it intended to do
so and, consequently, the court erred. Indeed, the court stated it
was granting the City’s motion for judgment on the pleadings. For
the reasons discussed above, this, too, constitutes error and
remand is necessary for the District Court to properly resolve the
City’s motion under either Rule 12(c) or Rule 56, M.R.Civ.P., after
notice and an opportunity for the parties to present all pertinent
materials.
¶9 Reversed and remanded for further proceedings consistent with
this opinion.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
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