Miller v. Herbert

NO. 95-032
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
ARTHUR D. MILLER,
Plaintiff and Appellant,
-»V...
DAVE HERBERT and SAFECO
INSURANCE COMPANY,
DefendantS and R@sp0ndentS.
APPEAL FROM: District C0urt of the Third JudiCial DiStrict,
In and for the C0unty of Anac0nda-Deer L0dge
The H0n0rable Ted L. Mizner, Judge preSiding.
COUNSEL OF RECORD:
FOr Appellant:
W.M. Hennessey, HennesSey, J0yce, McCarthy & Wing,
Butte, M0ntana
F0r ReSp0ndent:
P. Keith Keller, Keller, Reyn0ldS, Drake, J0hnS0n &
GilleSpiQ, Helena, M0ntana
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Submitted on BriefS: May l9, 1995
Decid@d: July 25, 1995
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal fron1 a decision. of the Third Judicial
District Court, Anaconda-Deer Lodge County, granting summary
judgment in favor of Defendants/Respondents, Dave Herbert and
Safeco Insurance Company. We affirm.
The issue on appeal is did the District Court err in granting
summary judgment for the reason that Plaintiff/Appellant, Arthur D.
Miller (Miller), failed to establish a material issue of-fact?
Defendant/Respondent, Safeco Insurance Company {Safeco) moves
this Court to dismiss this appeal.
The issue on Safeco's motion to dismiss is whether Miller’s
notice of appeal was timely? we deny Safeco's motion to dismiss
this appeal for untimeliness.
Facts
Miller was involved in an automobile accident with an
uninsured motorist, defendant Dave Herbert, on December 25, l989.
Miller‘ was covered. by an ‘uninsured motorist insurance policy
through Safeco. Miller received a check from Safeco, dated March
l8, l99l, and then endorsed and deposited said check on March 20,
l99l. Directly above Miller's endorsement, the check stated:
Your endorsement releases the Safeco Group of Insurance
Companies and their insureds, where applicable, from all
claims arising out of the referenced occurrence. [The
occurrence referenced on the face of the check is the
December 25, l989, accident.}
On December 2l, l992, Miller filed a claim with the District
Court for additional uninsured motorist insurance proceeds arising
from the December 25, 1989 automobile accident. Safeco answered
alleging Miller had accepted a check in compromise and complete
accord and satisfaction for his claim, thus, releasing Safeco.
Safeco subsequently filed a nmtion for summary judgment which
motion was granted by the District Court on October 27, l994.
Miller filed and served a motion, for reconsideration. on
November 9, l994; and on the same day the District Court filed its
Judgment dismissing Miller's complaint on its merits with
prejudice. Notice of entry of the court's judgment was served on
Miller on November 23, l994. The District Court denied Miller's
motion for reconsideration on December l2, l994.
Miller filed a notice that he was appealing the District
Court's summary judgment on December 29, l994. On January 30,
l995, Safeco filed a motion with this Court requesting we dismiss
Miller's appeal as untimely.
Motion to Dismiss Appea1
The issue on Safeco's Motion to Dismiss is whether Miller’s
notice of appeal was timely made?
Rule 5, M.R.App.P., provides time limits for filing notices of
appeal.
Rule 5.
(a) Appeais in civil cases.
(l) In civil cases the notice of appeal required by
{these rules} shall be filed. with the clerk of the
district court within 30 days from the date of the entry
of the judgment or order appealed from, except that in
cases where service of notice of entry of judgment is
required by Rule 77(d) of the Montana Rules of Civil
Procedure the time shall be 30 days from the service of
notice of entry of judgment;
.(4) If a timely motion under the Montana Rules of
Civil Procedure is filed in the district court by any
party: (i) for judgment under Rule 50(b); (ii) under Rule
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52(b) to amend, or 1nake additional findings of fact,
whether or not an alteration of the judgment would be
required if the motion is granted; (iii) under Rule 59 to
alter or amend the judgment; or (iv) under Rule 59 for a
new trial, the time for appeal for all parties shall run
from the entry' of the order denying az new 'trial or
granting or denying any other such motion,
Miller filed his appeal in the District Court thirty-six days
after he was served with a notice of entry of judgment. Safeco
argues Miller's motion for reconsideration was not a motion which
could eXtend. his time to file under Rule 5(a)(4), M.R.App.P.
Safeco asserts the post-judgment motions referred to in Rule
5(a)(4) apply only to well~defined circumstances, and must be
decided in accordance with specific standards.
Safeco argues Miller failed to present any‘ new facts or
original legal arguments; thus, Miller impermissibly asked the
lower court to revisit the identical issue it already decided.
Safeco concludes, because Miller’s motion for reconsideration
cannot be deemed to be a Rule 50(b), 52(b) or 59 motion, the last
date upon which a notice of appeal could have been filed was
December 23, l994. Miller filed his appeal on December 29, l994.
Therefore, Safeco concludes the appeal was untimely and should be
dismissed by this Court.
Miller argues, while a motion for reconsideration is not
specifically referred to in Rule 59{g), M-R.CiV~P~, ChiS COUIC haS
equated it to a motion to alter or amend a judgment under that
rule. Easley v. Burlington Northern Railroad (l988), 234 Mont.
29G, 292, 762 P.2d 870, B7l. Miller concludes that when he filed
his motion for reconsideration he extended his time for filing an
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appeal of the summary judgment under Rule 5(a}(4), M.R.App.P., to
thirty days after the District Court denied his motion.
Miller points to the fact the District Court denied his motion
for reconsideration on December l6, l994, and he filed his notice
of appeal on December 29, 1994--well within the thirty day time
limit set forth in Rule 5(a)(4), M.R.App.P. Miller requests that
we deny Safeco's motion to dismiss because his notice of appeal was
timely made under this Court’s holding in Easley.
ln Easley, we stated:
A nmtion for reconsideration, while not specifically
referred to in Rule 59(g), M.R.Civ.P., has been equated
to a motion to alter or amend a judgment.
Easley, 762 P.2d at B71. We find no authority to support this
statement in Easley in its broadest interpretation. A motion for
reconsideration will not be equated to a Rule 59(g} motion to alter
or amend unless the substance of the motion constructively requests
that the court alters or amends the judgment. We shall look to the
substance of a motion, not just its title, to identity what motion
has been presented.
On February 28th, l995, we reserved ruling on Safeco’s motion
to dismiss Miller’s appeal for further consideration of its merits.
After such consideration, we conclude Safeco's motion to dismiss
will be denied in this instance because of our holding in Easley.
lt would be unfair to Miller to dismiss his appeal when he may have
been mislead by the statement in Easley that a motion for
reconsideration has been equated to a motion to alter or amend. we
do conclude that it is necessary to limit the holding in §a§ley for
future cases.
we hold. that the statement in Easley--that a motion for
reconsideration may be equated to a motion to alter or amend a
judgment-»is limited to motions which contain statements or
allegations demonstrating that such motion is the equivalent to a
motion to amend or a motion to alter a judgment. we further hold
that Miller's notice of appeal was timely and deny Safeco’s motion
to dismiss the appeal.
Appeal of Summary Judgment
Did the District Court err in granting summary judgment for
the reason that Miller failed to establish a material issue of
fact?
Miller states, in order for Safeco to prevail on its motion
for summary judgment, it must prove there is no existence of any
material fact at issue. Miller contends Safeco failed to meet its
burden because Miller’s understanding that he released his claims
against Safeco is a genuine issue of material fact.
Miller refers to his affidavit, submitted in opposition to
Safeco’s motion for summary judgment, where he stated. he has
suffered from mental and psychological disorders for a number of
years and he was suffering from such disorders during the time he
allegedly released all claims against Safeco. He further stated he
did not understand that he was releasing any claims when he
endorsed the check, and he believed he was merely recouping further
medical expenses.
Miller claimed he did not realize Safeco's adjuster, Mark
Sannes, was seeking a release of all claims when they discussed the
matter on March 14, l99l. Miller contends his affidavit conflicts
with Mark Sannes' affidavit which states it was Mr. Sannes’
intention to obtain a full release. Furthermore, Miller argues his
inability to understand such release at that time is supported by
the affidavit of Dr. Timothy Casey' (Dr. Casey) who has been
Miller's psychologist since April of l99l. Miller concludes these
affidavits clearly demonstrate a material issue of fact; therefore,
the District Court's grant of summary judgment was improper.
Safeco contends, according to Miller’s claims, his appeal
succeeds or fails on the question of his mental capacity and
whether he furnished the District Court with sufficient evidence to
create a material fact issue. Safeco argues Miller’s claim of not
understanding is insufficient without more to create a fact issue.
Safeco surmises that any release or settlement agreement is
vulnerable to the claim, after the fact, that it was not
understood.
The standard we apply in reviewing a District Court's summary
judgment is the same as that used by the District Court under Rule
56(c), M.R.Civ.P. -- "[s]ummary judgment is proper only when no
genuine issue of nmterial fact exists and the moving party is
entitled to a judgment as a matter of law." Spain~Morrow Ranch,
InC. v. WES'C (Mont. 1994), 872 P.2d 330, 331-32, 51 S’C.Rep. 363,
364 (citing Minnie v. City of Roundup (l993), 257 Mont. 429, 43l,
849 P.2d 2l2, 214).
The District Court found that Miller "failed in his burden to
produce evidence of a genuine issue of material fact." The court
also found_ that Miller “effectively released iDefendant Safeco
Insurance Company from all claims and that the parties did reach
complete accord and satisfaction. [Miller’s] claim that he lacked
capacity to consent at the time he signed the release is not
supported by any competent evidence. Dr. Casey's Affidavit is pure
speculation." These findings are supported by the record; and, in
fact, there is nothing in the record to contradict these findings.
Miller relies on Morrow v. FBS Insurance (l988), 230 Mont.
262, 749 P.2d lO73, to argue that it was improper for the District
Court to grant summary judgment where Miller's credibility was
crucial to the decision of nmterial fact. we agree with the
District Court's conclusion that "this is not a case where
fMiller's] credibility' is essential to a ¢determination_ of the
issues."
ln Morrow, 749 P.2d at lO75, we stated:
all "reasonable inferences that may be drawn from
the offered proof are to be drawn in favor of the party
opposing summary judgment.“ [Citation omitted.]
Morrow asserts that in applying this rule, the lower
court ignored the material fact questions created by the
conflicting affidavits and depositions of the parties.
In support of this argument, Morrow cites § 26-1-30l,
MCA, which provides:
One witness sufficient to prove a fact. The
direct evidence of one witness who is entitled
to full credit is sufficient for proof of any
fact, except perjury and treason.
we agree with Morrow’s argument.
The Court then considered all reasonable inferences in favor of
Morrow’s offered proof and concluded that there was not the
appropriate absence of material fact. ln that case, the record
contained specific statements of fact contradicted by specific
statements of fact of other witnesses. Morrow, 749 P.2d at 1073-
76. Here, we have merely the statements on the part of Miller
which the District Court said required more of an expert on the
matter of mental capacity.
There was no expert testimony to establish Miller’s incapacity
to understand mentally what he was doing at that time. Dr. Casey
testified that it was "possible [Miller’s] judgment may have been
compromised at that time and he may not have understood the import
of what he was doing." we have consistently held that speculation
is not a sufficient basis on which to raise a genuine issue of
material fact. Fauerso v. Maronick Construction (1983), 203 Mont.
106, 661 P.2d 20; General Insurance Company of North America v.
Town Pump, Inc. (l984}, 214 Mont. 27, 692 P.2d 427; Brothers v.
General Motors Corporation (1983), 202 Mont. 477, 658 P.2d 1108.
we agree with the District Court's finding that this testimony is
entirely speculative and insufficient to create an issue of
material fact.
we hold the District Court did not err in granting summary
judgment for the reason that Miller failed to establish a material
F 'tice``
issue of fact.
we Concur:
\ .Chief Justice U
Justices
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Justice Karla M. Gray, specially concurring.
I concur ill the Court's opinion cn1 the substantive issue
involving summary judgment. 1 specially concur in the Court's
opinion insofar as it relates to the motion to dismiss the appeal,
agreeing with the result but not with the rationale.
The Court concedes that there is no basis for the statement in
Easley that a motion for reconsideration has been equated to a
motion to alter or amend a judgment. Indeed, it is clear that the
Montana Rules of Civil Procedure do not provide for, or authorize,
a motion to reconsider at all; as a result, no such motion is
encompassed within Rule 5(a), M.R.App.P. Under these
circumstances, it is my view that the better course would be to
overrule the entirety of the statement in Easley, rather than to
merely limit it as the Court has done. 1 would hold that any
motion captioned a motion to reconsider is to be entirely
disregarded by opposing parties and district courts because no such
motion exists within the purview of the rules of civil procedure.
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§
Justice w. william Leaphart, dissenting.
1 dissent. 1n opposing Safeco's motion for summary judgment,
Miller put forth essentially two separate arguments: (1) that at
the time of signing the release, he was suffering from mental
problems which effected his capacity to comprehend what he was
doing, and (2) that he did not understand the terminology and scope
of the specific release language. with regard to the question of
his mental capacity, 1 think that Miller raised a genuine issue of
material fact sufficient to defeat the motion for summary judgment.
Miller submitted the affidavit of a psychologist, Timothy Casey,
who testified that he had diagnosed Miller as having somatoform
pain disorder and Axis 11 diagnosis of paranoid personality
disorder; further, that these disturbances may have compromised
Miller’s judgment at the time of signing the release. The District
Court rejected Casey’s testimony because he was not treating Miller
at the time of the release. However, Miller submitted his own
affidavit which stated that he had suffered from a mental and
psychological disorder for a number of years and "was suffering
from such disorders in March, l99l"--the date of the release.
without commenting upon the strength or weight of this testimony,
1 believe that the psychologist’s affidavit combined with Miller’s
uncontroverted affidavit raises a genuine issue of material fact as
to whether Miller was of "unsound mind" under § 28-2-201, MCA, and
thus incapable of executing a valid release, irrespective of the
particular language of the release in question. 1 would reverse
the summary judgment.
Justice Terry N. Trieweiler and Justice william E. Hunt, Sr.,
join in the foregoing dissent of Justice w. william Leaphart.
Justice
Justice
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