No




                                                               No. 98-116




                          IN THE SUPREME COURT OF THE STATE OF MONTANA




                                                              1998 MT 203




                                           JIM & TRACY'S ALIGNMENT, INC.,




                                                     Plaintiff and Respondent,




                                                                      v.




                                                            KEITH SMITH,




                                                     Defendant and Appellant.




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                                                            APPEAL FROM: District Court of the Thirteenth Judicial
                                                                                District,

                                             In and for the County of Yellowstone,

                                         Honorable Diane G. Barz, Judge Presiding.




                                                    COUNSEL OF RECORD:




                                                             For Appellant:




                                     Keith Warren Smith, Pro Se, Roundup, Montana




                                                            For Respondent:




                          R. Russell Plath, Halverson, Sheehy and Plath, Billings, Montana

                                       Assistant Attorney General, Helena, Montana




                                              Submitted on Briefs: June 25, 1998




                                                     Decided: August 24, 1998


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                                                                    Filed:




                                    __________________________________________

                                                                    Clerk

                      Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶ Jim & Tracy's Alignment, Inc., brought this action in the Thirteenth Judicial
District Court, Yellowstone County, to collect a bill for repairs on Keith Smith's
pickup truck. The action was dismissed on Jim & Tracy's motion after the repair bill
was paid. Smith appeals. We affirm.

¶ Smith sets forth fifteen issues on appeal. As discussed more fully below, the only
substantive issue properly before this Court is whether the District Court abused its
discretion in granting the motion to dismiss.

                                                              Background

¶ Jim & Tracy's initial complaint in this action was filed in September 1997, to
collect a bill for repair of Smith's pickup truck. The complaint mistakenly identified
Smith's truck as a 1985 GMC; the model year was actually 1986. In response to the
complaint, Smith, appearing pro se, filed a demand for jury trial, an unsupported
motion to dismiss, a motion for leave to proceed in forma pauperis, and a motion for
substitution of judge. The District Court denied Smith's in forma pauperis motion.
This Court reversed that denial on Smith's application for supervisory control and
remanded for further proceedings including substitution of judge.

¶ On remand, the presiding judge was substituted. Smith filed a brief and affidavit in
support of his earlier motion to dismiss, stating that he had at no time owned the
vehicle described in the complaint. Jim & Tracy's then moved to be allowed to
amend its complaint to give the correct model year for Smith's pickup. Smith

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opposed that motion and moved for Rule 11, M.R.Civ.P., sanctions against Jim &
Tracy's on grounds that they had falsely certified that reasonable inquiry into the
facts was made before they filed their complaint.

¶ The court granted Jim & Tracy's leave to file an amended complaint, and an
amended complaint was filed indicating the correct model year for Smith's truck.
Smith then moved for more definite statement under Rule 12(e), M.R.Civ.P., and for
Rule 11, M.R.Civ.P., sanctions on grounds that one of Jim & Tracy's briefs contained
an improper citation to a nonpublished case. Jim & Tracy's opposed Smith's motion
for more definite statement, arguing that the information requested by Smith could
be obtained through discovery after he filed an answer to the complaint, which he
had not yet done. It opposed Smith's second request for sanctions on grounds that
the unpublished case was a related case and was cited only to show that the presiding
judge had knowledge of Smith's financial status for purposes of deciding his in forma
pauperis motion. On December 11, 1997, Smith filed a reply brief and a notice for
hearing on his pending motions to be held on January 7, 1998.

¶ On the same day, Jim & Tracy's moved to dismiss its amended complaint pursuant
to Rule 41, M.R.Civ.P., because Smith's bill had been paid in full. On December 15,
1997, the District Court granted the motion to dismiss, vacated the hearing set for
January 7, 1998, and ordered that "THE ABOVE-ENTITLED MATTER IS
CLOSED AND NO FURTHER DOCUMENTS CAN BE FILED OR ALLOWED TO
BE FILED IN THIS ACTION."

¶ Smith filed a second application for writ of supervisory control with this Court. We
granted supervisory control to the extent of stating that Smith could not be denied
his right to file a notice of appeal, but denied the application to all further extent.
Smith appeals.

                                                               Discussion

¶ This Court does not generally rule on moot questions. A moot question is one which
existed once but no longer presents an actual controversy. Ruckdaschel v. State Farm
(1997), 285 Mont. 395, 396, 948 P.2d 700, 701. Smith states as one of his issues on
appeal that the District Court erred in initially denying him leave to defend the case
without prepayment of fees. That issue was resolved in his favor as a result of his
first application for writ of supervisory control and is now moot. There is no reason


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to consider it further.

¶ Smith states as another issue that lawyers are held to higher standards in filing
court papers than are nonlawyers. He does not connect this statement to the record,
and this was not a matter relied upon by the District Court in granting dismissal. We
conclude that this is not an issue and decline to consider it further.

¶ Smith sets forth three issues relating to Jim & Tracy's citation, in a brief, to this
Court's nonpublished opinion in Smith's appeal of a prior District Court case to
which he was a party. Smith argues that Jim & Tracy's should have been sanctioned
by the District Court and by this Court for that citation to an unpublished opinion.

¶ Review of the record reveals that Jim & Tracy's reference to this Court's opinion
in the prior case was solely for purposes of explaining that the District Court had
prior information on Smith's financial status, in relation to his application to be
allowed to appear in forma pauperis. The case was not cited as legal authority, and its
citation was in no way improper. The District Court did not err in failing to award
sanctions for that citation.

¶ The District Court's order dismissing this case under Rule 41(a), M.R.Civ.P., is the
proper focus of this appeal. Our standard of review of that order granting voluntary
dismissal is whether the trial court abused its discretion. Harwood v. Glacier Elec.
Coop., Inc. (1997), 285 Mont. 481, 486, 949 P.2d 651, 654.

¶ Rule 41(a), M.R.Civ.P., provides in relevant part:

                  (2) By order of court. Except as provided in paragraph (1) of this subdivision
                  of this rule, an action shall not be dismissed at the plaintiff's instance save
                  upon order of the court and upon such terms and conditions as the court
                  deems proper. If a counterclaim has been pleaded by a defendant prior to the
                  service upon the defendant of the plaintiff's motion to dismiss, the action shall
                  not be dismissed against the defendant's objection unless the counterclaim can
                  remain pending for independent adjudication by the court. Unless otherwise
                  specified in the order, a dismissal under this paragraph is without prejudice.




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Because Smith had not filed an answer to Jim & Tracy's complaint, no motion for
summary judgment was, or could have been, made. The remaining question is whether
Smith had pleaded a counterclaim which precluded dismissal of the complaint.

¶ Smith sets forth several issues in his brief to this Court which may be construed to
imply that he had counterclaims pending when the District Court dismissed this
action. He maintains the court erred in dismissing the action before the expiration of
the time statutorily allowed him to answer the motion for dismissal. Smith also
alleges that the District Court erred in not dismissing the complaint upon his motion
and in not sanctioning Jim & Tracy's for filing a frivolous complaint; that Jim &
Tracy's maliciously prosecuted him by filing malicious original and amended
complaints and by delaying in moving to dismiss its complaint; and that the initial
denial of his motion to be allowed to proceed in forma pauperis established prejudice
against him in the courts of Yellowstone County.

¶ Although Smith lists all of the above as issues on appeal, a thorough review of the
District Court file does not reveal any document that can be considered as a
counterclaim for purposes of preventing dismissal under Rule 41(a), M.R.Civ.P.
Only two documents in the District Court file even remotely hint at counterclaims.
The first is Smith's brief in opposition to Jim & Tracy's motion to be allowed to
amend the complaint, which states, "Registration papers and personal belongings of
Defendant which, along with a 1986 GMC pickup were detained against interests by
Plaintiff in violation of repealed mechanic lien statutes, contained the correct
information." Smith's request for relief in that document was that the District Court
deny the motion to amend and for sanctions. The second document which hinted at a
counterclaim was Smith's reply brief to Jim & Tracy's response to Smith's motion
for more definite statement. In that document, Smith stated:

                  [I]t still is in the best interest of all concerned to obtain at this time all other
                  information requested by Defendant, since he needs it to properly compose
                  affirmative defenses, counterclaims, third party complaints and joinder of
                  additional parties.



                  Defendant believes in good faith . . . that violations of criminal and civil
                  statutes likely took place, pertaining to a pickup he at one time owned. These


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                  include, but are not restricted to detainer, vehicle theft, theft of property from
                  a motor vehicle, fraud, driving of a vehicle without owner's permission, et al.



Smith asked the court to order Jim & Tracy's to issue a more definite statement, "and for
all other relief as may be granted in the interests of curing INFECTIOUS INJUSTICE
TM."

¶ A pleading which sets forth a claim for relief, such as a counterclaim, must contain
a short and plain statement of the claim and a demand for judgment for the relief
sought. Rule 8(a), M.R.Civ.P. The above documents seem to indicate an intent on the
part of Smith to file counterclaims in the future, but neither of them establishes a
pleaded counterclaim for purposes of notice to Jim & Tracy's that a counterclaim
had been filed. Even a liberal approach to pleading would not recognize Smith's
statements as a counterclaim.

¶ Having thus concluded that no counterclaims were filed in this case, we hold that
the District Court did not abuse its discretion in dismissing Jim & Tracy's complaint
against Smith under Rule 41(a), M.R.Civ.P., on grounds that the amount due had
been paid. We affirm the District Court's order of dismissal.



/S/ J. A. TURNAGE



We concur:



/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.


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/S/ W. WILLIAM LEAPHART




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