Joyner v. Onstad ( 1989 )

No. 8 9 - 0 8 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
JACK JOYNER,
Plaintiff and Appellant,
-vs-
JOHN ONSTAD, and GALLATIN COUNTY,
a political subdivision of the
State of Montana,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jack Joyner, pro se, Belgrade, Montana
For Respondent:
A. Michael Salvagni, County Attorney; Marty Lambert,
Deputy County Atty., Bozeman, Montana
I - Submitted on Briefs: Oct. 25, 1 9 8 9
: : 1
LO 3
C3 C, Decided: December 21, 1989
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749 P.2d 1076, 1079, 45 St.Rep. 179, 182. The rule
specifically provides that the adverse party
may not rest upon the mere allegations or
denials of his pleading, but his
response, by affidavits or as otherwise
provided in this rule, must set forth
specific facts showing that there is a
genuine issue for trial. If he does not
SO respond, summary judgment, if
appropriate, shall be entered against
him.
Rule 56 (e), M.R.Civ.P.
In the present case, Sheriff Onstad and Gallatin County
relied upon § 2-9-111, MCA, and Bieber v. Broadwater County
(Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218, to argue to the
District Court, both orally and in writing, that they had
immunity from Joyner's suit and that their motion for summary
judgment should be granted. Joyner, on the other hand, did
not deny nor rebut defendants' arguments. Joyner also did
not set forth any facts showing that a genuine issue existed
for trial. The District Court had before it the pleadings,
the decision of the Montana Department of Labor and Industry,
and portions of the interrogatories. The court also held a
hearing in which Joyner failed to argue, either orally or in
writing, that Sheriff Onstad's and Gallatin County's motion
for summary judgment should be denied.
The District Court did not err in granting Sheriff
Onstad's and Gallatin County's motion for summary judgment in
light of Rule 56 (e), M.R.Civ.P. As stated before, this rule
provides that summary judgment, if appropriate, shall be
entered for the movant if the opposing party does not respond
and set forth specific facts showing that a genuine issue
exists as to a material fact. Merely because the District
Court did not state specifically that "there is no genuine
issue as to any material fact" does not warrant a reversal of
the District Court's decision. Furthermore, Joyner did not
rebut nor deny Sheriff Onstad's and Gallatin County's motion
for summary judgment nor did he set forth facts showing that
there is a genuine issue of material fact for trial. The
record supports the District Court's determination that no
genuine issue exists a s to any material fact.
Affirmed.