MARTIN v STATE

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No. 84-274 I N THE SUPmME COURT OH THE STATE O M N A A F OTN BERNICE MARTIN, a m i n o r , by LEONA M. BERGER, h e r G u a r d i a n Ad L i t e m , P l a i n t i f f and A p p e l l a n t , STATE O MONTANA, DELORES COLBERG, F Superintendent of Public Instruct i o n , Montana; C U T O VALLEY, O NY F Montana; IRMA McINERNEY, Superi n t e n d e n t o f S c h o o l s , V a l l e y County, Montana; ELEMENTARY SCHOOL DISTRICT N M E THIRTEEN ( 1 3 ) , Nashua, U BR V a l l e y County, Montana, e t a l . D e f e n d a n t s and R e s p o n d e n t s . APPEAL FROM: D i s t r i c t Court of t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f V a l l e y , The H o n o r a b l e M. James S o r t e , J u d g e p r e s i d i n g , COUNSEL O RECORD: F For A p p e l l a n t : R u s s e l l A . L a v i g n e , J r . , a r g u e d , Montana L e g a l Seruices, H e l e n a , Montana For Respondents: Anderson, Brown, G e r b a s e , C e b u l l & J o n e s ; Richard C e b u l l a r g u e d f o r S t a t e , B i l l i n g s , Montana Smith Law Firm; Chadwick S m i t h a r g u e d f o r S c h o o l D i s t r i c t # 1 3 , H e l e n a , Montana David N i e l s o n , County A t t o r n e y , a r g u e d , Glasgow, Montana James P . L u c a s , ( J o n e s ) , M i l e s C i t y , Montana Submitted: Decided: Clerk J a n u a r y 23, 1985 March 7 , 1985 Chief J u s t i c e J. A. Turnage d e l i v e r e d t h e Opinion of t h e Court. Mr. P l a i n t i f f , a minor, through h e r f o s t e r mother, appeals from an o r d e r of t h e D i s t r i c t Court o f t h e S e v e n t e e n t h J u d i cial. D i s t r i c t , V a l l e y County, of May 7 , 1984, g r a n t i n g mo- t i o n s f o r summary judgment by d e f e n d a n t s S t a t e of Montana and Dol-cres C o l b e r g ; Elementary School D i s t r i c t Number T h i r t e e n ( 1 3 ) ; Nashua, Valley psychologist. W e a f f i r m t h e lower c o u r t o r d e r . County, Montana; and William Jones, The c h i l d ' s c l a i m f o r damages from h e r placement i n a s p e c i a , e d u c a t i o n program i n 1.973 f i r s t came b e f o r e t h e C o u r t i n an a p p e a l of a p r e v i o u s o r d e r of November 2 0 , 1980, g r a n t i n g motions for 1 9 8 2 ) , 649 P.2d summary 425, judgment. 39 St.Rep. M. B. 1285. v. Sta.te (~ont. This Court h e l d t h a t t h e S t a t e i s n o t p r o t e c t e d by immunity and owes a d u t y of reasonable care in placing students in special education W a f f i r m e d t h e d i s m i - s s a l of due p r o c e s s and e q u a l e programs. protection cla.ims and remanded for further proceedings. W h o l d now t h a t t h e lower c o u r t ' s second o r d e r of May e 7, 1984, was g r a n t e d s q u a r e l y on t h e i s s u e o f damages and t h a t p l a i - n t i f f / a p p e l l a n t f a i l e d t o m e e t t h e burden s h i f t e d t o h e r under Rule 5 6 , M.R.Civ.P., t o r a i s e a g e n u i n e i s s u e of m a t e r i a l f a c t w i t h r e s p e c t t o t h e c l a i m f o r damages. F o l l o w i n g remand, answers, depositions, supporting b r i e f s . p r e s e n t e d upon plaintiff both p a r t i e s issued i n t e r r o g a t o r i e s , production of The t r i a l judge docu.ments, m o t i o n s examined the and evidence di.scovery and found c l e a r admissj-ons by t h e and h e r g u a r d i a n i n t h e i r d e p o s i t i o n s t h a t no r e a l i n j u r y had been s u f f e r e d . depositions in support Although t h e S t a t e mentioned t h e s e of i t s motion, plaintiff did not respond by affidavit or by reference to any sworn discovery to raise an issue of fact that was not conclusory or speculative regarding the alleged injury. The lower court entered its May 7, 1984, order which granted the relief solely "on the grounds that there is no genuine issue as to any material fact with respect to the claim for damages contained i.n Plaintiff's Second Amended Complaint. . . ." The lower court dismissed the complaint with preiudice. Appellant/plaintiff raises the following issues: 1. Did the lower court err in granting the motion for summary judgmen.t? 2. Was expert testimony required to prove causation and damages? 3. Did the second amended complaint state a cause of a-ctionagainst defendant Valley County? 4. Does the "law of the present case" doctrine preclude granting summary judgment? The first issue on the propriety of summa-ry judgment is dispositi~reof the case, and the remaining three issues are peripheral. Rule 56, M.R.Civ.P., presents procedure and protection for both parties in motions for summary judgment. The motion shall be served at least ten days before the hearing, and. the adverse party may serve opposing affidavits. ... "Motion Proceedings thereon. The judgment sought shal.1 be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movi-ng party is entitled to a judqment as a matter of law." Rule 56 (c), M.R.Civ.P. "Form of affidavits -- further testimony defense required. Su-pporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in the rule, an adverse party may - - upon not rest the - alleqations or denials - meye of his affidavits pleadinq, - - respo=e, but his or as in this - - otherwise ~rovided - - - rule. must - forth specific facts showing set - there - - genuine issue for trial. that is a If - - -not so respond, summary judqhe does ment, if appropriate, shall - entered be Rule 56 (e), M.R.Civ.P. against-him. " (Emphasis added. ) -- ... This Court has long established precedent on the requirenents of Rule 56, M.R.Civ.P., on the burden of proof. The initial burden of establishing the absence of any issue of material fact is on the party seeking summary judgment. But where the record discloses no genuine issue as to any material fact, then the burden shifts to the party opposing the motion to present evidence of a material and substantial nature to raise a genuine issue of fact. Roope et al. v. The Anaconda Company (1972), 159 Mont. 28, 32, 494 P.2d 922, 924; Mustang Beverage Co. v. Schlitz Brewing (19731, 162 Mont. 3.43, 246, 511 P.2d 1, 3; Krone v. McCann (Mont. 1 9 8 2 ) , 638 P.2d 397, 399-400, 39 St.Rep. 10, 13. Furthermore, conclusory or speculative statements are insufficient to raise a genuine issue of material fact. Barich v. Ottenstror (1976), 170 Mont. 38, 42, 550 P.2d 395, 397, cited in Detert v. Lake County IMont. 1984), 674 P.2d 1097, 1100-1101, 41 St.Rep. 76, 80. Where appellant failed to meet the burden shifted under Rule 56, M.R.Civ.P., court's order granting sumnary judgment was proper. the Shimsky v. Valley Credit Union (Mont. 1984), 676 P.2d 1308, 1311-1312, 41 St.Rep. 258, 262. Here, pl.aintiff repeated the initi.al. allegations contained in the complaint. She may not rest upon the mere allegations of her pleadings but has an affirmative duty to respond by affidavits or reference to sworn testimony with specific facts that show there is a genuine issue for trial. Where plaintiff presents evidence of damages which are purely speculative, summary judgment is appropriate. State (Mont. 1981-) , 634 P.2d Ti.teca v. 1156, 1161, 38 St.Rep. 1533, 1540. In disposing of the issue of summary judgment, we note Expert testimony was not that the remaining issues are moot. required to oppose the motion on summary judgment by the court's order. The lower court noted in an aside in the opinion, not the order, of plaintiff's difficulty at trial without such testimony. The summary judgment, however, required only evidentiary response by affidavit or by reference to sworn testimony to raise more than conclusory allegations. It is irrelevant whether the second amended complaint stated a cause of action because at issue j s M.Ft.Civ.P., M.R.Civ.P., summary judgment, not a Rule a Rule 56, 12(b) (6), motion to dismiss for failure to state a claim. Furthermore, plaintiff claims that the "law of the present case" doctrine governs the same issues in later stages of the same case. Ari-zona v. California (3P83), 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318. In B. M. v. State (Mont. 19821, 649 P.2d 425, 39 St.Rep. 1285, we reversed a different order for summary judgment granted grounded on different issues. upon different motions and Affirmed. W e concur: Mr. Justice William E. Hunt, Sr., dissenting: I respectful-ly dissent. before Here, the trial court had it, evidence upon which concerning the issue of damages. it could base a verdict was For example, B.M. required. to repeat one year in school, an item of damages which we have previously ruled as compensable. Graveley v. Springer (1965), 145 Mont. 486, 490, 402 P.2d 41, 43; she regressed. devel-opmentally by refusing to feed and dress herself; she was called a "retard" at school, was taunted about flunking, and suffered emotional insecurity. Even though a judgment for damages must be supported by evidence that is not the product of mere guess or speculation, this Court has ruled that recovery of damases will not be denied, even if the mathematical precision of the figure js challenged, provided the evidence is sufficient to afford a reasonable basis for determining the specific amount awarded. Cremer v. Cremer Rodeo Land and Livestock Co. (Mont. 1981), 627 P.2d 1199, 1202, 38 St.Rep. 574, 578. The law requires only that the trier of fact exercise calm and reasonable judament, and the amount of the award rests of necessity in the sound discretion of the trier of fact. When there is strong evidence of the fact of damage, the defendant should not escape liability because the amount of damage cannot he proven with precision. Jarussi v. Board of Trustees, etc. (Mont. 1983), 664 P.2d 316, 318, 40 St.Rep. 720, 723. The majority has cited Titeca v. State (Mont. 1981), 634 P.2d 1156, 38 St.Rep. 1533 for the proposition that damages which are purely summary judgment. inapposite. speculative can be properly defeated by P?hile that point is true, Titeca is There, Titeca proved no damage, did not suffer a l ~ s sof property, did not show liability, and failed to advance any viable counsel for B.M. complaint and theory did of alleae requested a recovery. Here, however, irreparable damages in specific monetary award. District Court erroneously ruled the The that evidence requiring skilled and professional analysis to determine the cause and extent of damage cannot be supplied by a layperson, citing Ankeny v. Grunstead (1976), 170 Mont. 128, 135, 551 P.2d 1027, 1-031-1 032. The District Court next erred in shifting the burden in this summary judgment action from the respondents to R.M. The burden shifts only when the record shows no genuine issue for trial. In the sane depositions in which the alleged admj.ssions occurred there is evidence wholly contrary to an admission. The "admissions" here are actually nothing more than selectively chosen, specific "yes" or "no" answers to general questions concerning B.M.'s mental and physical condition throughout a considerable period of time. In the same depositions from which these "admissions" were selected there is questions evidence that in the form contradicts the of answers "admissions." to specific Where the record contains evidence contesting other evidence it cannot be maintained that no issue exists. The burden could not shift here because the record showed issues for trial. There is a catch-22 situation here. The District Court rejected B.M. Is 1-ay testimony, ruling that expert testimony was required, and none being presented, B.M. loses to summary judgment. The majority, on the other hand, holds expert not testimony was - necessary, but does not recognize the lay testimony, and thus again, B.M. loses to summary judgment.

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