                                                                                         April 30 2013



                                          DA 12-0692

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2013 MT 118N



BURLY MICHAEL GRIMES,

              Plaintiff and Appellant,

         v.

LIZ RANTZ, MEDICAL DIRECTOR, MONTANA
STATE PRISON, (Individual Capacity),

              Defendant and Appellee.


APPEAL FROM:          District Court of the First Judicial District,
                      In and For the County of Lewis and Clark, Cause No. BDV-2012-505
                      Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Burly Michael Grimes, self-represented; Deer Lodge, Montana

               For Appellee:

                      Timothy C. Fox, Montana Attorney General; Ira Eakin, McKenzie
                      Hannan, Special Assistant Attorneys General; Helena, Montana



                                                  Submitted on Briefs: April 3, 2013
                                                             Decided: April 30, 2013



Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.



¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Burly Michael Grimes (Grimes), appeals from the order entered in this matter by

the First Judicial District Court on October 22, 2012, which granted the motion to dismiss

this matter filed by Liz Rantz (Rantz). This is a declaratory action that is related to a tort

action also filed by Grimes in the First Judicial District Court against Rantz. The tort

action alleges negligence and violation of Grimes’s civil rights by Rantz as a result of

Rantz’s alleged refusal, in her capacity as medical director for the Department of

Corrections, to authorize proper medical care for Grimes. The State’s Tort Defense

Division is defending Rantz in that action pursuant to her contract with the State, which

provides that the State will defend and indemnify Rantz for duties performed on behalf of

the State pursuant to § 2-9-305, MCA. Section 2-9-305, MCA, governs immunization,

defense, and indemnification of public officers and employees.

¶3     Grimes filed this declaratory action “seeking a formal decree as to the Statutory

and Contractual legal standing” of Rantz. His petition alleges, and he argues on appeal,

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that Rantz is not a state employee, but rather a private contractor who is not entitled to

legal representation or indemnification by the State. He further argues that the provision

of Rantz’s contract with the State that provides for indemnification constitutes an illegal

object of contract. Grimes asserts that, without a declaration as to Rantz’s legal status,

the provisions of § 2-9-305(5), MCA, “would prohibit [Grimes] from recovering

judgment against [Rantz] separately should the State ‘suddenly decide to take the position

that it owes [Rantz] no duty of indemnification.’”

¶4     Grimes’s briefing does not address the basis for the District Court’s granting of

Rantz’s motion to dismiss, other than to argue that he has an unspecified constitutional

right to the declaratory ruling he requests. The District Court reasoned that the question

of whether Rantz is a state employee or a contractor may be an issue in the tort case, but

cannot be answered in this declaratory proceeding. Issues such as whether the State

would be required to pay damages to Grimes would also be determined in the tort

proceeding. Thus, the District Court concluded that there was no justiciable controversy

in this case and that Grimes sought only an advisory opinion.

¶5     “The decision to dismiss a complaint for declaratory relief is within the sound

discretion of the district court.” Renville v. Farmers Ins. Exch., 2003 MT 103, ¶ 9, 315

Mont. 295, 69 P.3d 217 (citation omitted).

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

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issues in this case are ones of judicial discretion and there clearly was not an abuse of

discretion. Any legal issues are controlled by settled law and were correctly interpreted

by the District Court.



                                               /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER




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