March 2 2011
DA 10-0262
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 38N
RICHARD GOLD,
Plaintiff and Appellant,
v.
CITY OF MISSOULA, MISSOULA LAW
ENFORCEMENT, COUNTY OF MISSOULA,
MISSOULA COUNTY SHERIFF,
Defendants and Appellees.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DV 03-046
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Richard Gold (self-represented), Missoula, Montana
For Appellees:
Keithi M. Worthington, Missoula City Attorney; William Levine and Tara
M. Rose-Miller, Legal Interns, Missoula, Montana (City of Missoula and
Missoula Law Enforcement)
Dorothy Brownlow, Deputy County Attorney, Missoula, Montana (County
of Missoula and Missoula County Sheriff)
Submitted on Briefs: February 1, 2011
Decided: March 2, 2011
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not serve
as precedent. Its case title, 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 lengthy legal battle stems from the impoundment and sale of Richard Gold’s
(Gold) 1981 Honda Accord in 2001. In January 2003, Gold sued the City of Missoula,
Missoula County, and their respective law enforcement agencies (Defendants) for the value
of the car and the personal property inside the car, for violating various constitutional rights
(“eminent domain,” “due process,” “equal protection,” and “unreasonable search and
seizure”), loss of use, and mental and emotional distress. What followed were numerous
motions for summary judgment by both sides, motions to compel, a petition for a writ of
supervisory control to this Court, and long periods of inactivity, all culminating in the final
order in this case which granted summary judgment to Defendants and dismissed Gold’s
lawsuit with prejudice.
¶3 Gold raises several issues on appeal. Defendant City of Missoula requests that Gold’s
references to a prior case, which was appealed to this Court and a final order issued on May
4, 2010, be stricken. Each issue, and the facts relevant to each issue, will be addressed
separately.
¶4 Issue One: Should Gold’s references to a prior case be stricken?
¶5 Gold makes several references to a prior action in which he sued the State of
2
Montana, the Montana Legislature, and Governor Brian Schweitzer, claiming his rights
under various provisions of the Montana Constitution were violated and he was left at an
“unequal disadvantage” when he was denied appointed counsel in this case. We affirmed the
District Court’s order in a memorandum decision. See Gold v. State, 2010 MT 102N. The
Defendants seek to have those references stricken.
¶6 Rule 12(f) of the Montana Rules of Civil Procedure allows a court to strike “any
redundant, immaterial, impertinent, or scandalous matter” from any pleading. We find
references to Gold’s prior action immaterial to the present appeal and are therefore stricken.
¶7 Issue Two: Did the District Court violate Gold’s right to confront witnesses when it
allowed affidavits to be considered at the summary judgment stage?
¶8 Gold argues the use of affidavits at the summary judgment stage violated his right to
confront witnesses. His argument is based upon the Sixth Amendment to the United States
Constitution and Crawford v. Washington, 541 U.S. 36 (2004). The Defendants argue that
those authorities are relevant to criminal trials only, not to Gold’s civil case. We agree.
Crawford does not apply to civil cases. In re T.W., 2006 MT 153, ¶ 13, 332 Mont. 454, 139
P.3d 810. The right to confront witnesses in a civil case applies at trial. Bonamarte v.
Bonamarte, 263 Mont. 170, 174-75, 866 P.2d. 1132, 1135 (1994); M. R. Evid. 611(e)
(emphasis added). Rule 56 of the Montana Rules of Civil Procedure clearly allows affidavits
to accompany motions for summary judgment. We find no error.
¶9 Issue Three: Was Gold’s right to a speedy jury trial violated?
3
¶10 Gold argues the District Court denied him the right to a speedy jury trial by allowing
the Defendants to move for summary judgment several times. The Defendants argue no
speedy jury trial right exists in the civil setting. We agree. “The right of jury trial on any
issue of fact . . . is provisional, and if the evidence fails to form such issue of fact, the right of
jury trial disappears.” Federal Land Bank of Spokane v. Snider, 247 Mont. 508, 513, 808
P.2d 475, 478-79 (1991). In other words, if there are no issues of fact, there is no jury trial.
The District Court did not err.
¶11 Issue Four: Did the District Court err when it granted summary judgment to
Defendants on all issues?
¶12 Gold argues the District Court erred when granting summary judgment to Defendants
because there are genuine issues of material fact. Defendants argue that summary judgment
was proper on all issues because there are no genuine issues of material fact and they are
entitled to judgment as a matter of law.
¶13 Our review of a district court’s summary judgment decision is de novo. Thornton v.
Flathead County, 2009 MT 367, ¶ 13, 353 Mont. 252, 220 P.3d 395. We review a district
court’s conclusions of law for correctness. Id.
¶14 The District Court granted summary judgment to Defendants on the following:
1. Gold’s due process claim, on March 4, 2004;
2. Gold’s unreasonable search and seizure claim, eminent domain claim (for the car
itself), equal protection claim, and loss of use claim, on June 22, 2004; and
3. Gold’s eminent domain claim (for his personal property inside the car), and mental
and emotional distress claims, on April 20, 2010.
4
A. Due Process
¶15 Due process generally requires notice of a proposed action that could result in the
deprivation of a property interest and the opportunity to be heard. Pickens v. Shelton-
Thompson, 2000 MT 131, ¶ 13, 300 Mont. 16, 3 P.3d 603. Sufficient notice to comport with
due process is that which is reasonably calculated, under all circumstances, to inform the
parties of proceedings which may directly affect their legally protected interests. Id. at ¶ 15.
Notice must be more than a gesture. Id.
¶16 We find no error in the District Court’s granting of summary judgment to Defendants
on this issue. Gold was given adequate notice both that his car was to be towed and that his
car was actually towed. He did not attempt to reclaim it. Therefore, the District Court
properly found it was abandoned.
B. Search and Seizure
¶17 There is no privacy right in abandoned property. See State v. 1993 Chevrolet Pickup,
2005 MT 180, ¶ 14, 328 Mont. 10, 116 P.3d 800. The alleged search and seizure of Gold’s
abandoned car was not prompted by criminal investigation, but was the result of the
Defendants following the statutory procedure for abandoned vehicles. It was not an
unreasonable search and seizure within the meaning of Article II, Section 11 of the Montana
Constitution.
C. Eminent Domain
5
¶18 Private property shall not be taken or damaged for public use without just
compensation. Mont. Const. art. II, section 29 (emphasis added). Generally, acts conducted
in the proper exercise of police power do not constitute a taking of property and do not
entitle the owner to compensation. Knight v. City of Missoula, 252 Mont. 232, 242, 827 P.2d
1270, 1276 (1992). The Montana Legislature has specifically allowed local governments to
remove abandoned vehicles from highways, county roads, and city streets. See §§ 61-12-401
to 408, MCA. We find that neither the towing nor sale of Gold’s vehicle, and the personal
property inside, constitute a taking of private property for public use, but rather were proper
exercises of police powers granted by statute.
D. Equal Protection
¶19 The basic rule of equal protection is that persons similarly situated should receive like
treatment. Blehm v. St. John’s Lutheran Hospital, Inc., 2010 MT 258, ¶ 23, 358 Mont. 300,
___ P.3d. ___. The first step is to identify the class of persons. Satterlee v. Lumberman’s
Mutual Casualty Co., 2009 MT 368, ¶ 15, 353 Mont. 265, 222 P.3d 566. Gold did not
specify the class involved in his Amended Complaint, or in further briefing, and, therefore,
did not state an equal protection claim. Summary judgment was appropriate.
E. Loss of Use
¶20 Gold’s alleged constitutional violations formed the basis for any damages in his “loss
of use” claims. Because no constitutional violations were found, there are no damages.
Consequently, it was proper to dismiss the “loss of use” claims.
F. Mental and Emotional Distress
6
¶21 Finally, it was proper to grant summary judgment on Gold’s mental and emotional
distress claims. A claim for negligent or intentional emotional distress arises under
circumstances where serious or severe emotional distress to a plaintiff was the reasonably
foreseeable consequence of the defendant’s negligent or intentional act or omission. Sacco
v. High Country Independent Press, 271 Mont. 209, 237, 896 P.2d 411, 428 (1995).
Defendants acted lawfully under the statute regarding abandoned vehicles. Further, it was
for the District Court to decide whether, on the evidence, serious or severe emotional distress
could be found. Id. at 233, 896 P.2d at 425. Gold did not provide any factual information to
support his allegation that he suffered serious or severe emotional distress, even after being
ordered to provide discovery on the issue.
¶22 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. The legal
issues are controlled by settled Montana law which the District Court correctly interpreted,
and the record supports the District Court’s determination on all issues.
¶23 Affirmed.
/S/ MICHAEL E WHEAT
We Concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
7
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
8