98-037




                                                                          No. 98-037

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                         1998 MT 148N



                                            MIKE SIMONITSCH and BETTY SIMONITSCH,
                                                      husband and wife,

                                                                 Petitioners and Appellants,

                                                                                     v.

                                        F & R RANCHES, INC., and LEO H. STERNS
                                          and MARY STERNS, husband and wife;
                                      ex rel. Sixteenth Judicial District Court,

                                                                 Defendants and Respondents.




               APPEAL FROM:                   District Court of the Sixteenth Judicial District,
                                                       In and for the County of Carter,
                                                 The Honorable Joe L. Hegel, Judge presiding.


                                                               COUNSEL OF RECORD:

                                                                             For Appellants:

                                           Richard O. Harkins, Attorney at Law; Ekalaka, Montana

                                                                            For Respondents:

                                         James T. Carr, Carr Law Firm, P.C.; Miles City, Montana



                                                                            Submitted on Briefs: April 23, 1998

                                                                            Decided:               June 9, 1998
                                                                            Filed:


                                                      __________________________________________
                                                                        Clerk

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                  Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
Internal Operating Rules, the following decision shall not be cited as precedent
but shall be filed as a public document with the Clerk of the Supreme Court
and shall be reported by case title, Supreme Court cause number, and result to
the State Reporter Publishing Company and to West Group in the quarterly
table of noncitable cases issued by this Court.

¶2   The plaintiffs, Mike and Betty Simonitsch, filed a petition in the
District Court for the Sixteenth Judicial District in Carter County to quiet title
to an easement over land owned by the defendants, F & R Ranch, Inc., and
Leo and Mary Sterns. The District Court issued a temporary restraining order
to enjoin F & R from blocking Simonitschs' use of the easement. F & R moved
to dismiss the action, and a hearing was held. Thereafter, Simonitschs moved
for summary judgment. The District Court construed the motion to dismiss as
a motion for summary judgment, denied both summary judgment motions, and
denied Simonitschs' motion for a preliminary injunction. Simonitschs appeal.
We dismiss the appeal.

¶3        Simonitschs raise four issues on appeal:

¶4        1.       Is this appeal properly before this Court?

¶5   2.   Did the District Court err when it recharacterized F & R's motion
to dismiss as a motion for summary judgment?

¶6   3.   Did the District Court err when it went beyond the complaint to
arrive at its decision?

¶7   4.   Did the District Court err when it denied Simonitschs' motion for
summary judgment?
                   FACTUAL BACKGROUND

¶8   Mike and Betty Simonitsch own land and a homestead in Carter
County. Betty has lived there since 1958.

¶9   The Simonitschs access their property by two roadways that run across
two separate parcels of land owned by F & R Ranches, Inc., and Leo and Mary
Sterns, respectively. A third access which does not cross either neighbors'
land also exists, although it is difficult to traverse in wet or snowy weather.
Simonitschs have used the roadways for as long as they have lived on the land
and contend that the roadways were owned and used by the public prior to and
after the current owners acquired the land.

¶10 The parties dispute the nature of the Simonitschs' use of the roadway.
Ralph and Mark Bruski, who have an ownership interest in F & R, contend
that they have always allowed Simonitschs permissive use of the roadway over


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their land. Simonitschs contend that their use has always been hostile and in
violation of the "No Trespassing" signs that Bruskis posted as far back as the
1950s. It is undisputed that signs were posted to prohibit trespassing, but that
the signs were repeatedly torn down. In addition, it is undisputed that Bruskis
were aware of Simonitschs' use of the roadway, and that the two parties
communicated on occasion and at times confronted each other about the
maintenance and use of the roadway.

¶11 On July 2, 1996, Bruskis informed Simonitschs that their permissive
right of access over the F & R Ranch was being withdrawn, based on the
perceived abuse of the roadway by Simonitschs. A week later, Bruskis
chained the gate and made passage impossible. The next day, Simonitschs
filed in the District Court a petition to quiet title to a prescriptive easement
over Bruskis' and Sternses' land; the petition was later amended to claim
another easement over Sternses' land. When they filed the original petition,
Simonitschs received a temporary restraining order to allow for their continued
use of the roadway. The parties stipulated to the use until a show cause
hearing was held.

¶12 On August 1, 1996, Bruskis moved to dismiss Simonitschs' claim; in
November, they sought a hearing to terminate the stipulation. The hearing was
held in the District Court on January 28, 1997. Three days later, Simonitschs
moved for summary judgment on the basis that the testimony at the hearing
entitled them to a prescriptive easement as a matter of law.

¶13 On November 19, 1997, the District Court's memorandum and order
recharacterized Bruskis' motion to dismiss as a motion for summary judgment,
based on the evidence that the parties had submitted. The District Court
concluded that there were factual matters which precluded either party from
judgment, and it denied both motions for summary judgment. In addition, it
rejected Simonitschs' request for a preliminary injunction, and consequently
terminated Simonitschs' temporary right to use the roadway. The decision was
based on its conclusion that Simonitschs had failed to show a likelihood that
they would ultimately prevail in the matter.

¶14 On January 26, 1998, Simonitschs filed a petition with this Court for
supervisory control, in which they requested a temporary injunction to prohibit
Bruskis from barring their use of the roadway. We denied the petition. This
appeal followed.
                       DISCUSSION

¶15       Is this appeal properly before this Court?

¶16 The Montana Rules of Appellate Procedure establish the type of orders
and judgments from which a party may appeal. A refusal by a district court
to grant an injunction is one such order that permits an appeal to this Court.
See Rule 1(b)(2), M.R.App.P.

¶17       Simonitschs contend here that their appeal is from the District Court's


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refusal to grant an injunction which would have allowed their use of the
roadway until a final determination.

¶18 However, they present no substantive discussion of how the District
Court erred when it refused to grant an injunction. Rather, the substance of
their appeal is from the District Court's denial of their summary judgment
motion.

¶19 It is well-established that parties may not appeal the denial of a
summary judgment motion prior to entry of a final judgment. See Nutter v.
Permian Corp. (1986), 224 Mont. 72, 727 P.2d 1338; State ex rel. Kosena v.
District Court (1977), 172 Mont. 21, 560 P.2d 522. Regardless of how
Simonitschs describe their appeal, we conclude that the substance of their
appeal is from the District Court's denial of their motion for summary
judgment. Accordingly, at this stage of the proceedings, the appeal is
premature.

¶20 We therefore dismiss the appeal and remand this case to the District
Court for a final determination of this matter.

                                                            /S/        TERRY N. TRIEWEILER



We Concur:

/S/       J. A. TURNAGE
/S/       WILLIAM E. HUNT, SR.
/S/       W. WILLIAM LEAPHART



Justice James C. Nelson specially concurs.

¶21 I concur in our opinion. I would, in addition to dismissing Simonitschs'
appeal, also award F & R its costs and reasonable attorney fees incurred in
defending this appeal. Rule 32, M.R.App.P., allows this Court to award
damages to the responding party in a civil case where the appeal was "taken
without substantial or reasonable grounds." It is clear that, here, Simonitschs'
appeal of the court's order denying injunction was nothing more than a
transparent tactic to actually appeal the court's denial of their motion for
summary judgment --which, as we point out, is not an appealable order. This
appeal was wholly frivolous. Simonitschs have wasted the time and money of
F & R not to mention the time and resources of this Court. At the very least,
F & R should not have to bear the costs and expense of obtaining the dismissal
of an appeal that should never have been filed in the first place.


                                                            /S/        JAMES C. NELSON


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