 96-714




                                                      No. 96-714

                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            1997



STATE OF MONTANA,
CITY OF HAMILTON,

                   Plaintiff and Respondent,

          v.

VICTOR I. PIZZOLA, Jr.,

                   Defendant and Appellant.




APPEAL FROM:                 District Court of the Twenty-First Judicial District,
                             In and for the County of Ravalli,
                             The Honorable Jeffrey H. Langton, Judge presiding.


COUNSEL OF RECORD:

                   For Appellant:

                             Victor I. Pizzola, Jr., Hamilton, Montana, Pro Se

                   For Respondent:

                             Hon. Joseph P. Mazurek, Attorney General
                             Christina Lechner Goe, Assistant Attorney General, Helena, Montana

                             T. Geoffrey Mahar, City Attorney, Hamilton, Montana




                                                                Submitted on Briefs: May 22, 1997

                                                                                   Decided:               July 23, 1997
Filed:


                             __________________________________________

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                             Clerk
Justice Karla M. Gray delivered the Opinion of the Court.


          Victor I. Pizzola, Jr. (Pizzola), appearing pro se, appeals from the order of
the
Twenty-First Judicial District Court, Ravalli County, dismissing his appeal from the
City
Court of Hamilton (City Court) with prejudice. We reverse and remand.
      The sole issue on appeal is whether the District Court erred in dismissing
Pizzola's
appeal from the City Court for a trial de novo with prejudice.
      The City of Hamilton (City) charged Pizzola in the City Court with committing
the
offense of disorderly conduct in violation of    45-8-101, MCA. The facts upon which
the charge was based were that Pizzola knowingly or purposely drove through a
barricaded street and "flipped off" the construction workers at that location. He
moved
to dismiss on the grounds that the charge violated his First Amendment right to free
speech and the City moved to amend the complaint. The City Court denied Pizzola's
motion to dismiss and permitted the City to amend the complaint to add a charge of
reckless driving in violation of    61-8-301, MCA, or, in the alternative, careless
driving
in violation of    61-8-302, MCA.
      A jury subsequently found Pizzola guilty of disorderly conduct and careless
driving
and not guilty of reckless driving. The City Court also held Pizzola in contempt on
three
different bases and sentenced him on September 12, 1996, to 23 days in jail, with
all but
1 day suspended, a fine and costs.
      On September 23, 1996, Pizzola filed a pro se notice of appeal for a trial de
novo
in the District Court. The District Court scheduled an omnibus hearing for November
6, 1996.
      On October 18, 1996, the City moved to dismiss Pizzola's appeal with prejudice
on the basis that it was not timely filed under    46-17-311, MCA, which requires
that a
notice of appeal be filed within 10 days after a judgment is rendered; no cases from
this
Court were cited in support of the motion. Because Pizzola's notice was filed 11
days
after judgment and sentence were rendered by the City Court, the City contended that
the
District Court did not have jurisdiction to entertain the appeal.
      Pizzola did not appear in person or by counsel at the scheduled omnibus
hearing.
The City argued that his failure to appear constituted an additional basis for
dismissing
the appeal. The District Court gave Pizzola additional time to respond to the
motion to
dismiss.

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      Pizzola did not respond to the City's motion and, on November 15, 1996, the
District Court entered an order dismissing his appeal with prejudice "upon motion by
the
City of Hamilton and good cause being shown." Pizzola appeals.
      Did the District Court err in dismissing Pizzola's appeal from the City
      Court with prejudice?
      Section 46-17-311, MCA, requires that a notice of appeal to a district court
for a
trial de novo be filed within 10 days. We have held, however, that the 10-day
period for
filing such a notice of appeal excludes intermediate weekend days and legal
holidays.
State v. Price (1995), 271 Mont. 409, 411, 897 P.2d 1084, 1085; State v. Schindler
(1994), 268 Mont. 489, 492, 886 P.2d 978, 980. Thus, pursuant to Price and
Schindler,
both of which had been decided at the time of the City's motion, Pizzola's notice of
appeal filed on September 23, 1996, was timely and the District Court had
jurisdiction
to entertain it.
      On appeal to this Court, the City concedes the timeliness of Pizzola's notice of
appeal in the District Court, thus also conceding that no legal basis existed for
its motion
to dismiss Pizzola's appeal to the District Court with prejudice. The City argues,
however, that Pizzola's failure to respond to its motion to dismiss constituted an
admission, under Rule 2(b), Unif.Dist.Ct.R., that the motion was well taken.
Consequently, according to the City, the District Court did not abuse its discretion
in
granting the City's motion to dismiss Pizzola's appeal. We disagree.
      As noted above, the District Court dismissed Pizzola's appeal on the basis of
the
City's motion and "good cause being shown." We take the court's statement, together
with its failure to mention Rule 2(b), to mean that the court ruled on the City's
motion
on the merits. As previously discussed, that ruling was incorrect as a matter of law
under Price and Schindler.
      Addressing the City's Rule 2(b), Unif.Dist.Ct.R., argument, that Rule provides
that failure to file a brief may subject a pending motion to summary ruling. It
goes on
to provide that a failure by an adverse party to file an answer brief to a briefed
motion
within 10 days "shall be deemed an admission that the motion is well taken." Rule 2
(b),
Unif.Dist.Ct.R. "We have interpreted this Rule as allowing the trial court
discretion to
either grant or deny an unanswered motion." State v. Loh (1996), 275 Mont. 460, 466,
914 P.2d 592, 596 (citing Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d
1285, 1289).
      In Maberry, the adverse party did not timely respond to a motion and the moving
party argued that Rule 2(b) required that the motion be deemed well taken and
granted.
The district court denied the motion. Maberry, 777 P.2d at 1288. The moving party
appealed, arguing--in essence--that the rule required the court to grant the

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motion. We
reasoned that, while the absence of a response brief to a motion "may" subject the
motion
to summary ruling under Rule 2(b), the rule does not require a district court to
grant an
unanswered motion. We reached the same result in State v. Fertterer (1993), 260
Mont.
397, 399, 860 P.2d 151, 153, holding that the district court did not abuse its
discretion
in denying the defendants' unanswered motion to amend their sentences and motion for
summary ruling on the motion to amend.
      Loh, Maberry and Fertterer all addressed situations where district courts denied
unanswered motions. Our holdings in those cases clarified that district courts have
discretion, under Rule 2(b), Unif.Dist.Ct.R., in deciding whether to make a summary
ruling on an unanswered motion. None of those cases, however, addressed the specific
situation before us in the present case. Here, the issue is whether a district
court can
properly grant a legally unsupported and insupportable motion to which a timely
response
brief has not been filed by a party. We hold that it cannot do so.
      This case involves the interplay between a rule and cases which vest certain
discretion in trial courts, the obligation of parties to properly support their
motions with
legal authority, and the obligation of courts to make rulings which are correct as a
matter
of law. Clearly, Rule 2(b), Unif.Dist.Ct.R., is intended--and properly so--to allow
district courts to deal efficiently with ever-increasing case loads and pending
motions
which the parties are obligated to brief in order for the courts to make expeditious
rulings. Just as clearly, however, the Rule is not intended to allow a party to
obtain a
favorable legal ruling on a motion which not only cites no supporting authority from
this
Court, but fails to cite existing authority from this Court which clearly renders
the motion
incorrect as a matter of law. Moreover, a "deemed admission" that a motion is well
taken under Rule 2(b), Unif.Dist.Ct.R., cannot convert a motion which is incorrect
as a
matter of law into a motion which is well taken as a matter of law.
      Finally, in this regard, while Rule 2(b) states that failure to file a brief
"may"
subject a motion to a summary ruling, nothing in the Rule or in our cases
interpreting the
Rule suggests that the summary ruling is to be based on something other than a proper
application of the law to the motion at hand. Indeed, since "discretion" connotes
that part
of the judicial function which decides questions according to the particular
circumstances
of the case, uncontrolled by fixed rules of law (State ex rel. Leach v. Visser
(1988), 234
Mont. 438, 447, 767 P.2d 858, 863), it is clear that a district court cannot properly
exercise discretion to make an incorrect ruling on a question controlled by law.

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     We conclude that, pursuant to Price and Schindler, the District Court erred as a
matter of law in granting the City's motion to dismiss Pizzola's appeal with
prejudice.
     Reversed and remanded for further proceedings consistent with this opinion.

                                                                       /S/       KARLA M. GRAY


We concur:

/S/       JAMES C. NELSON
/S/       JIM REGNIER
/S/       WILLIAM E. HUNT, SR.
/S/       W. WILLIAM LEAPHART




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