August 19 2008
DA 07-0407
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 292N
LINDA METZGER, individually and on behalf
of the West McIver Road Neighbors, an
Association of Concerned Citizens,
Plaintiffs and Appellees,
v.
PAM POLEJEWSKI and MICHAEL HANSON,
Defendants and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. BDV 2005-1147
Honorable Julie Macek, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Michael Lee Hanson, Pam Polejewski (Pro Se), Libby, Montana
For Appellee:
Patrick F. Flaherty, Attorney at Law, Great Falls, Montana
Submitted on Briefs: July 23, 2008
Decided: August 19, 2008
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, the Supreme Court 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 This is an appeal by Pam Polejewski and Michael Hanson (collectively,
“Appellants”) from the District Court’s order granting summary judgment in favor of
Linda Metzger. We affirm.
¶3 Beginning in 1998, Polejewski and, eventually, Hanson, began to acquire a variety
of animals at their residence at 77 Wexford Lane in Cascade County. They eventually
accumulated nearly two hundred animals on the property. In 1999 and 2000, Appellants’
neighbors complained about persistent barking. The Cascade County Sheriff’s Office
eventually investigated a complaint that there were unwatered horses on the property.
Veterinarians subsequently examined the animals on the property (including one hundred
and thirty-eight dogs, eighteen horses, and seventeen cats) and determined that the
animals were being kept in an unsatisfactory condition. The dogs had not previously
received adequate veterinary care. The property was littered with carcasses, and horses
were being fed moldy hay.
¶4 Metzger eventually filed suit against Appellants to abate a public nuisance. After
reviewing the record, including a DVD of the premises filmed by the Cascade County
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Sherriff’s Office, and listening to oral argument from both parties, the court granted
summary judgment in favor of Metzger. It ordered that “neither Ms. Polejewski nor Mr.
Hanson shall own, possess, or care for any animal, including mammals, fish, birds and
reptiles, nor have any animal, including mammals, fish, birds and reptiles at 77 Wexford
Lane.”
¶5 Appellants present the following issues for review by this Court:
1. Did the District Court abuse its discretion when it granted summary judgment
in favor of Metzger?
2. Did the District Court abuse its discretion and err when it admitted evidence
obtained from an illegal search and seizure?
¶6 The thrust of Appellants’ arguments under Issue 1 appears to be that the District
Court judge was biased and should have recused herself; yet, they never made such a
motion in the District Court. While Appellants also appear to dispute that their animals
constituted a nuisance, they do not contest on appeal that there were approximately two
hundred animals living on their property. With respect to Issue 2, Appellants maintain
that the DVD filmed by the Cascade County Sheriff’s Office was the product of an illegal
search and seizure. The DVD, however, was voluntarily produced by Appellants during
discovery.
¶7 We are willing to make accommodations for pro se litigants by relaxing the
technical requirements which do not impact fundamental bases for appeal. Appellants,
however, still have the burden of establishing error by a district court. See State v.
Bailey, 2004 MT 87, ¶ 26, 320 Mont. 501, ¶ 26, 87 P.3d 1032, ¶ 26. Appellants’ brief is
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replete with various factual statements and contentions which are appropriately resolved
in a trial court and not by this Court within the context of an appeal. Moreover, contrary
to M. R. App. P. 12(1)f., Appellants cite no legal authority in support of their position
and instead rely on bare, unsubstantiated allegations of due process violations.
Accordingly, we conclude that Appellants have failed to meet their burden of
demonstrating error by the District Court.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2003, which provides for
memorandum opinions. Having reviewed the record in this case, we determine that the
District Court did not err in granting Metzger’s motion for summary judgment, as no
genuine issues of material fact existed, and because Metzger was entitled to judgment as
a matter of law. It is manifest on the face of the briefs and the record before us that this
appeal is without merit because the legal issues are clearly controlled by settled Montana
law which the District Court correctly interpreted.
¶9 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
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