                             No.     94-251
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1995


CITY OF CUT BANK,
          Plaintiff,   Appellant,


GLACIER COUNTY, MONTANA,
DONALD KOEPKE, CLINTON R.
PILGERAM & FRED R. JOHNSON,
GLACIER COUNTY COMMISSIONERS,                       /q\:f~: 2 7 Jgg5




APPEAL FROM:   District Court of the Ninth Judicial District,
               In and for the County of Glacier,
               The Honorable R.D. McPhillips, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Selden S. Frisbee, Cut Bank, Montana
          For Respondent:
               Larry D. Epstein, Glacier County Attorney, Cut Bank,
               Montana


                            Submitted on Briefs:          December 22, 1994
                                              Decided:     March 21, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court

     This is an appeal from the grant         of summary judgment to

Glacier County by the Ninth Judicial District Court,               Glacier
county.   We affirm.

     The only issue on appeal is whether the District Court erred
in granting summary judgment to Glacier County.

     The City of Cut Bank (City) is a municipal corporation located

within the political subdivision of Glacier County (County).           The
County    Sheriff's    office    operates a   dispatch   service     which
dispatches for its own office as well as for the City.         The City

operates its own dispatch service for its police department, fire

department and animal control between the hours of 8:00 am until

4:00 pm. Monday through Friday.      The County dispatches for the City

between the hours of 4:00 pm and 8:00 am on work days and 24 hours

on weekends    and    holidays   and on all occasions when the city

dispatcher is unable to dispatch.

     The Glacier County Sheriff's Office dispatch is the designated

Public Safety Answering Point (PSAP) for the County pursuant to §

lo-4-103(3), MCA. The County sent a letter to the City on July 22,

1988 asking the City to contribute to the financing of the dispatch

service   which until     this   time,   the County had been funding

exclusively.   The City refused and the County threatened to cut off

the dispatch service to the City as of October 1, 1988.

     The City filed a Complaint seeking to have the County continue

to make its dispatch service available to the Cut Bank Police

Department at no charge.         The City sought to have the County

                                     2
enjoined from the cessation of this dispatch service and also

requested a writ of mandate to force the County to continue
providing the service free of charge to the City.

        The County filed an answer and engaged in limited discovery.

Subsequently the County moved for summary judgment.

        On April 20, 1994, the court granted summary judgment to the

County.     The City appeals that order.

        Did the District Court err when it granted summary judgment to

the County?
        The City argues that it had an agreement with the County that

specifically provides that the County would fund the dispatch

service for the City.        Further,   the City argues that statutes

require that the County fund this service for the City.         It is the

City's contention that its taxpayers are already paying for this

dispatch service and that contributing more money to the County for

this service would involve double-taxation.

        The County contends that there is no genuine issue of material

fact here and that the only issue to be resolved is a matter of

law.     According to the County's interpretation of the law, it is

not required to provide the City with free dispatch service. In

fact,   the County argues that it does not have to provide a dispatch

service to a city at all but that statutes allow it a choice of

three     alternatives   once it   is designated as a PSAP--it can

dispatch,    relay or transfer a message.      The   County   argues   that

issues involving taxation are irrelevant to the pertinent issue.

Further, the County argues that it is under no contract to the City

                                    3
of Cut Bank.

       Summary judgment will be granted if there is no genuine issue
of material fact and it is proven that the moving party is entitled

to judgment as a matter of law.      Rule 56(c) M.R.Civ.P.     The party
seeking summary judgment must prove that no material issues exist.

Kittelson v. Archie Cochrane Motors, Inc. (1991), 248 Mont. 512,

813 P.Zd 424.       Once that is proven,   the   non-moving   party   must
submit evidence to show that questions do exist as to material

issues.    Owen v. Ostrum (1993), 259 Mont. 249, 855 P.2d 1015.

       The District Court granted summary judgment finding that any

fact at issue was not material and counties are not required to

provide dispatch service to cities.        The District Court did not

find any statutory requirement that the County was required to pay

the City's dispatch service during off hours.       The District Court

found that all taxation arguments were not relevant.

       The County has proven that no questions of material fact
exist:    Cut Bank is a city within Glacier County and is currently
receiving free dispatch service from the County, the County has

asked for financial help from the City,       and the City has denied

that   help.   There is no question that this is the situation.       While

the City asserts in its pleadings that material issues exist, it

has provided no evidence to show that material issues are in any
way in controversy.      The City may not just assert that material

issues    exist; it    must present depositions,      affidavits,      some

evidence to support its assertions.      Minnie v. City of Roundup
(1993),    257 Mont. 429, 849 P.2d 212.
        The only question that exists under the facts of this case is

a legal one.          While the City is correct that the legislature

adopted 55 10-4-101 through 121, MCA in 1985, nothing within these

lengthy statutes requires that counties pay for dispatch services

to cities within their jurisdiction.

        These statutes are contained in a chapter entitled State

Emergency Telephone System and provide the requirements of such a

system     when    set     up    by   a    public     or    private       safety    agency.

Provisions        enable    agencies         with     common      boundaries       to   make

agreements    which      would    provide      emergency       service.     However,     the

statutes do not require an agency to provide free dispatch service

to another entity that shares a common boundary.

        The County asked the City in its interrogatories to submit a

copy of the agreement that the City stated it had with the County

concerning the County's dispatch service to the City.                              The City

provided a document that it called an "agreement" and which it

characterized as a binding contract.                       Even   a   cursory   inspection

shows     that it is        not a         contract.        A contract must          include

identifiable        parties,      parties'          consent,      lawful    object,      and

consideration.        Daniels v. Thomas (1990), 246 Mont. 125, 804 P.2d

359.      Here,    the only element                satisfied is that the document

involves a lawful object.

        The document is          clearly labeled "application" and is a

proposed     "final plan"         to be sent to the State of Montana for

approval of a county emergency telephone system.                          The record does


                                               5
not show that State approval was ever obtained for the plan.    The

City cannot rely on this document as it is clearly not a contract

purporting to provide Cut Bank with free dispatch service.
     We do not consider the question of taxation as it is not

relevant to the question of whether a county has to provide free
dispatch service to a city within its jurisdiction.

     We conclude that the City of Cut Bank did not meet its burden

of proving that material issues exist and the law involved does not

require a county to provide a city within its jurisdiction with

free dispatch service.   Therefore, we hold that the District Court

did not err in granting Glacier County summary judgment.

     Affirmed.




          Justices




                                 6
Justice Terry N. Trieweiler            dissenting.

       After    reviewing   the   record,       I find it difficult to either

agree or disagree with the majority opinion.                   There is simply an

inadequate basis in the record from which to draw any conclusion

about the County's and the City's respective obligations to each

other.

       The District Court's conclusion that Glacier County had no

obligation to provide dispatch services to the City of Cut Bank was

based, in part, on a 1977 Attorney General Opinion to that effect.

However,    the City's claim that it is entitled to dispatch services

without further charge is based on Title 10, Chapter 4, of the

Montana Code Annotated,           which provides for a state emergency

telephone      system.   This chapter of the Code was not even enacted
until 1985.

       Title 10, Chapter 4, of the Montana Code Annotated, provides

for the establishment of public safety answering points at various
locations in the State to receive emergency calls based on a 9-l-l

service,    and provide a response to those calls.                 Every city or

county which provides emergency services may establish an emergency

telephone      system.      However,     once    established    the   system   must

include 24 hour service accessible by dialing 9-1-l anywhere within

the system's jurisdiction.         The system must also provide for either

direct dispatch of safety services, or relay or transfer of 9-l-l

calls to the appropriate safety agency.              See § 10-4-103(l) and (2),

MCA.
        The facility (in this case the Glacier County Sheriff's
Office)     in which the local unit of government establishes the

emergency      telephone    system,      is known as the       "public        safety

answering point."        Section lo-4-101(13), MCA. When emergency calls

are made to a public safety answering point (the Glacier County

Sheriff's Office), the person receiving those calls has a statutory

duty to notify the appropriate "public safety agency" (in this

case,   the City of Cut Bank's fire department, police department, or

animal protection unit) of the request for services.                 However, the

Emergency      Telephone    System Act         seems    to provide     that     that

notification       can   take   one of        several   forms--either     "direct

dispatch," or transfer or relay of the call.             Section lo-4-lOl(131,

MCA.     The transfer method involves transferring the caller to the

appropriate provider of emergency services.              Section lo-4-101(16),

MCA.     The relay method requires that the 9-l-l dispatcher convey

the necessary information to the appropriate provider of emergency

services.     Section lo-4-101(14), MCA.          The direct dispatch method,

on the other hand, would require the person answering the phone at

the public safety answering point                 (the sheriff's office) to

dispatch     the   appropriate        emergency    service   units.       Section

lo-4-101(3), MCA.

        I would conclude from the provisions of the Emergency Telehone

System Act,     that once designated as the public safety answering

point for Glacier County, the County had an obligation pursuant to

5 lo-4-104(2), MCA,        to at least notify the City of requests for

emergency services within the City's jurisdiction.              However, it is

                                          8
unclear to me from           the     record     in       this     case     whether       the    county

denies      any        obligation          under         5    lo-4-104(2),             MCA,     without

reimbursement from the City, or whether it merely denies an

obligation       to    provide       for   direct        dispatch          of    emergency     services
within     the        City's       jurisdiction.                There       is    no     satisfactory

discussion of that issue in either party's brief, in the majority

opinion,    or elsewhere in the record.

        A second issue which causes me concern with the result arrived

at by the majority is the effect of the provision in § 10-4-111,

MCA, for the submission of a preliminary plan to the Department of
Administration by an applicant for a 9-1-l jurisdiction (in this

case,    the County).           In response to the County's request that the

City produce a copy of any written agreement which would require it

to provide emergency telephone service to the City,                                           the City

produced    a    27-page       document     entitled "Emergency Telephone System

Plan    Summary."        Various pages of the document are referred to by

the     subheading           "Agreement"       and           appear        to    be     executed     by

representatives         of     the   National          Park     Service,   the    County      Ambulance

Service, the County Commissioners, the County Sheriff's Department,

the County Fire Department, the City of Cut Bank, and the City of

Cut Bank Police Department.                   The purpose of the document, as set

forth on page one, was as follows:

        This application is to serve as a summary of the
        Preliminary and/or Final Plan to establish an emergency
        9-l-l telephone system as required by 10-4-101 through
        10-4-121, MCA.     Submission of this application is
        intended to expedite the state review and approval
        process by the Department of Administration.


                                                   9
      On page 25 of the plan summary, under the subheading “System

Cost," Glacier County apparently made the following representation:
      9-l-l costs for Glacier County Exceeds       [sic] state
      funding, therefore various county departments['l budgets
      will be used to offset differences.

      The plan makes no mention of any supplemental funding by the

City of Cut Bank and would explain the City's assumption that by

executing this document and submitting it to the Department of

Administration as the basis for the Department's approval of its

application for emergency telephone service, the County had agreed

to provide the service at no additional cost to the City.                      The

document   at    least   requires    further   foundation,      explanation,   and

possibly parol     evidence to explain its purpose and the parties'

understanding when they executed it.           However,    I disagree with the

majority when it         concludes that the document            itself does not

satisfy the necessary elements of a contract.

      The record does not make clear whether the County's plan

summary is a preliminary plan or final plan, and whether it was

approved by the Department of Administration.             Presumably, if it is

the   final      plan    and   was    approved    by      the    Department    of

Administration,     the County is bound by the             terms   of the plan,

including its offer to make up the difference between State funding

and the cost of the emergency telephone services from other County
departments.

      Finally,    the only source of funding for emergency telephone

services provided for in the Emergency Telephone System Act is
found at 5 10-4-201, MCA, which provides that 25 cents a month is

                                        10
to be assessed to each access line of each service subscriber in

the State.     The legislative history suggests that the Legislature

was aware that these charges would be insufficient to fully fund

emergency     telephone   services,   but does not indicate where the

shortfall was to be made up.      The record in this case is devoid of

any breakdown of the amount provided to the County and the City

pursuant to § 10-4-201, MCA,          as opposed to the actual cost of

operating the service, and the percentage of that cost assessed to

the City.     I conclude that this information would also be helpful

in resolving the issue raised on appeal by the City.

     Other than the plan summary referred to previously (which is

only questionably part of the record), the only evidence submitted
to the District Court upon which it could base summary judgment was

the affidavit of Gary Bjorklund,           the Glacier County Sheriff. In

his affidavit, he simply pointed out that the dispatch service at

the Glacier County Sheriff's Office is the designated "public

safety   answering    point"   for Glacier County 9-1-l service; he

explained that in addition to the County's own emergency services

(the County Sheriff's Office, rural fire departments, and County

ambulance),    the Sheriff's dispatch service served the City Police

Department and City Animal Control Service during specified periods

of time; and he stated that the County had demanded that the City

contribute to the expense of the dispatch service, but that the

City has refused to do so.

     Other than this sparse information, there is no record on

which to base summary judgment in this case.         Based on this record,

                                      11
I can neither agree nor disagree with the conclusion arrived at by

the majority.

       It is clear to me that the County, as the public safety

answering point, has a statutory obligation to notify public safety
agencies,         such as the City of Cut Bank,       of requests for service

within      the    agency's   jurisdiction,   with    or   without    reimbursement

from the City.         What is not clear to me is whether the County is
refusing to provide notice by either direct dispatch, relay method,

or transfer method,           or whether the County is simply declining to

provide direct dispatch without compensation.

       It is also clear, from documents which have been provided to

this Court, that some form of agreement was entered into between

the    County and the            City as a basis      for the        Department of

Administration's approval of the County's application for an

emergency telephone system.              That   document,       while    signed by

officials from both the County and the City, makes no reference to

payment by the City for that service, but suggests that if the cost

exceeds     State     funding,    the County will make up the difference.

However, this document requires further foundation and explanation.

       My concern is that without an adequate record, this Court has

decided issues of major significance to local governments around

the State, and may have decided those issues incorrectly.

       I conclude that the only appropriate resolution of this case

from   an    appellate    court's    perspective     is to vacate the summary

judgment entered by the District Court and remand this case to the
District      Court     for    further   development       of   the     record.   In

                                         12
particular,       I would instruct the parties to specify the forms of

notification the County is obligated to provide to the City without

compensation,          pursuant to § lo-4-104(2), MCA, and if there is a

difference,       which form of notification or dispatch service the

County claims it is entitled to charge a fee to perform.              I   would

also direct the parties to provide foundational testimony by the

parties who signed the agreement identified as a preliminary plan,
which is attached as Exhibit "A" to the City of Cut Bank's brief on

appeal,       with some explanation of the purpose for which the document
was prepared, what was ultimately done with the document, and what

the parties believe it means with regard to payment for emergency

telephone       services     in   Glacier   County.   As the record presently

exists,       the County has simply ignored the document.

        For    these    reasons,    I   am unable to concur in the majority

opinion.         While Glacier County may ultimately be entitled to

judgment as a matter of law in this case, I do not believe there is

an adequate record on which to arrive at that conclusion at this

time.

        Therefore,      I   dissent from the majority opinion.




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