No. 87-319
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
BUTLER R. EITEL,
Plaintiff and Respondent
-vs-
JOHN R. RYAN, SR.,
Defendant and Appellant
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County Ravalli,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Howard C. Greenwood, Hamilton, Montana
For Respondent:
Paul C. Meismer; Garlington, Lohn & Robinson,
Missoula, Montana
Submitted on Briefs: February 4, 1988
Decided:
Filed: 1 8 1988
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Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
John R. Ryan, Sr., appeals from the order of the
Ravalli County District Court granting Butler R. Eitel's
motion for summary judgment. We affirm.
Butler Eitel (Eitel) and his wife, Priscilla Eitel,
reside in South Dakota and own approximately forty acres of
agricultural property in Ravalli County, Montana. In a
letter dated May 11, 1984, Eitel offered to lease the forty
acres to John Ryan (Ryan) for $3,500 per year. Ryan accepted
the lease terms in a May 23, 1984,letter to Eitel. Eitel did
not receive any lease payments from Ryan from April, 1984, to
May, 1986. On June 17, 1986, Eitel filed suit in Ravalli
County for recision of the lease, possession of the property
and damages.
On July 14, 1986, Ryan, appearing pro se, answered
Eitel's complaint. Thereafter, Eitel's attorney scheduled
the taking of Ryan's deposition for October 28, 1986, and
sent notice of the deposition to Ryan on October 21, 1986.
The deposition was reset for November 3, 1986, to accommodate
Ryan's schedule.
On October 24, 1986, Eitel's attorney filed a motion
for summary judgment and notice of hearing along with an
amended notice of deposition and subpoena. These documents
were served upon Ryan by the Ravalli County Sheriff's Office
on October 31, 1986. On November 3, 1986, the morning Ryan's
deposition was scheduled to be taken, Ryan telephoned Eitel's
attorney and requested another resetting of the deposition.
Eitel's attorney refused to reschedule and told Ryan that the
deposition was needed to prepare for the summary judgment
hearing on November 5, 1986. Ryan arrived early for the
deposition and informed the court reporter that her services
would not be needed because the deposition had been
cancelled. Both the court reporter and Ryan then left.
Eitel's attorney traveled from Missoula to Hamilton for the
deposition only to find no one else in attendance.
Two days later, Ryan failed to appear at the November
5, 1986, summary judgment hearing. At that hearing, a local
attorney, Patricia Brolin-Ribi, moved for a continuance on
Ryan's behalf, but admitted to the Di-strict Court that she
did not represent Ryan. Apparently Ryan had contacted
Brolin-Ribi about representing him, but she had declined.
Bolin-Ribi's motion for continuance was denied. On November
10, 1986, the District Court granted Eitel's motion for
summary judgment and awarded Eitel possession of the
property. The District Court also awarded Eitel $7,159.70 in
past due lease payments which reflects a credit to Ryan for
$1,298.83 in repair costs made during the lease period.
On November 20, 1986, Ryan moved for a stay of
execution and retrial on the grounds that the documents
served upon him did not contain any reference to the November
5th summary judgment hearing and because, as a pro se
litigant, he should be excused from compliance with court
rules. Ryan next requested that Judge Douglas G. Harkin
withdraw from the case on the grounds that Ryan's previous
associations with the Judge would not allow Judge Harkin to
"give [Ryan] a fair trial." Judge Harkin treated Ryan's
request as a motion to disqualify for cause pursuant to
S 3-1-802, MCA (1985), and requested that this Court appoint
another district judge to hold a disqualification hearing.
We appointed the Honorable Frank M. Davis to hear
Ryan's motion to disqualify Judge Harkin for cause. Judge
Davis held a disqualification hearing on February 9, 1987,
found no evidence of bias or prejudice, and stated that
"Ryan's belief to the contrary is unsubstantiated and without
merit." Ryan's affidavit of disqualification for cause was
dismissed and Judge Harkin was revested with jurisdiction.
On March 23, 1987, the District Court conducted a
hearing to ascertain whether Ryan had in fact been given
adequate notice of the November 5, 1986, summary judgment
hearing. Ryan, appearing pro se, called and questioned
Eitel's attorney and the sheriff's deputies who performed the
service of process. From the evidence presented at this
hearing, the District Court found that Ryan had been served
with notice of the November 5th hearing and that Ryan had
actual knowledge of the hearing from his telephone
conversation with Eitel's attorney on November 3, 1986. The
District Court accordingly denied Ryan's November 26, 1986,
motion for stay of execution and retrial. This appeal
followed.
Ryan presents the following five issues for our review:
1. Does personal service of a motion for partial
summary judgment and the notice of hearing upon a party by a
sheriff's deputy at 2:15 p.m., Friday, October 31, 1986,
setting a hearing on the motion the following Wednesday,
November 5, 1986, meet the requirements of Rule 56 (c),
M.R.Civ.P., which requires that a motion for summary judgment
shall be served at least ten days before the time fixed for
hearing?
2. Can a summary judgment granted by default for
failure of the other party to appear stand if service of the
motion for summary judgment did not comply with the
requirements of Rules 56 (c) and 6 (d), M.R.Civ.P.?
3. Is the finding of the District Court that no
material issue of fact existed when it granted plaintiff's
motion for summary judgment supported by the evidence?
4. Did the District Court decide issues of material
fact in making its finding that no material issue of fact
existed when it granted the plaintiff's motion for summary
judgment?
5. Was the service of an amended notice of deposition
with a subpoena duces tecum served at 2:15 p.m., Friday,
October 31, 1986, setting the time of taking the deposition
at 10:OO a.m. the following Monday, November 3, 1986,
"reasonable notice" as required under Rule 30(b), M.R.Civ.P.?
At the outset we must note that Ryan's first, second,
and fifth issues were not raised at the District Court and
are raised for the first time on this appeal. This Court
recognizes that untimely objections regarding the notice
requirements of Rule 56 (c), M. R.Civ. P., serve to waive any
defect. Llera v. Wisner (1976), 171 Mont. 254, 266-267, 557
P.2d 805, 812-813. We also recognize that issues raised for
the first time on appeal are untimely and will not he
addressed by this Court. Scofield v. Estate of Wood (Mont.
1984), 683 P.2d 1300, 1302, 41 St.Rep. 1212, 1215.
Accordingly, Ryan's issues one, two, and five will not be
addressed.
Ryan's third and fourth issues are dispositive of this
appeal. Summary judgment should he granted if there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P. "The party moving for summary judgment has the
burden of establishing the absence of any genuine issue of
material fact and the party opposing the motion must come
forward with evidence supporting the existence of a genuine
fact issue." Pretty on Top v. City of Hardin (1979), 182
Mont. 311, 315, 597 P.2d 58, 60. We will review the
pleadings, affidavits, answers to interrogatories and
admissions on file to determine whether summary judgment is
proper. Westmont Tractor Co. v. Continental I, Inc. (Mont.
1.986), 731 P.2d 327, 328, 43 St.Rep. 2380, 2381.
Ryan makes reference to his answer to the complaint in
this action to argue that he has raised sufficient genuine
issues of material fact. However, Ryan, as the party
opposing summary judgment, may not depend "upon the mere
allegations of his pleadings," and he had "an affirmative
duty to respond by affidavits or sworn testimony with
specific facts that show there is a genuine issue of material
fact for trial." Drug Fair Northwest v. Hooper Ent., Inc.
(Mont. 1987), 733 P.2d 1285, 1287, 44 St.Rep. 435, 437. In
addition, the conclusory and speculative statements contained
in Ryan's answer are insufficient to raise a material issue
of fact. B.M. by Berger v. State (Mont. 1985), 698 P.2d 399,
401, 42 St.Rep. 272, 274-275.
Ryan contends that the letters attached to his answer
to Eitel's complaint establish that there was no lease or
that the lease terms periodically changed between 1984 and
1986. We have reviewed the entire record, including the
letters in question, and find nothing to raise a genuine
material issue of fact with which to justify reversal of this
case. The District Court correctly concluded that a valid
lease agreement had been entered into between Ryan and Eitel.
Ryan admittedly never made any lease payments in the
two-and-one-half years he occupied and used Eitel's property.
In addition to the pleadings in the matter, Eitel's
motion for summary judgment was supported by his own
affidavit and an affidavit from Priscilla Eitel. These
affidavits established that a lease had been entered into by
the parties, that Ryan was to pay Eitel $3,500 per year in
lease payments, and that Eitel never received any payments
from Ryan. Ryan now claims that these two affidavits were
improperly filed, untimely, and that the District Court
should not have considered them in its determinations. This
is the first time Ryan has objected to the use of these
affidavits. We reiterate that issues raised for the first
time on appeal are untimely and will not be addressed by this
Court. Scofield, 683 P.2d at 1302. It is entirely too late
for Ryan to complain about the District Court's consideration
of these affidavits. Schy v. Susquehanna Corp. (7th Cir.
1970), 419 F.2d 1112, 1116, cert. denied, (1970), 400 U.S.
826.
Ryan's final argument is that the District Court
decided issues of fact in granting summary judgment. While
it is improper for the District Court to resolve disputed
issues of material fact, our review of the record leads us to
the conclusion that the District Court did not make such a
mistake. We hold that the District Court correctly granted
Eitel's motion for summary judgment.
Affirmed.
We concur: 1