                                 NO. 84-121
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1984



EARL LUTZENHISER    &   KENNETH RUSSELL,

                           Plaintiffs and Respondents,
          -vs-
DICK HOLZWORTH,

                           Defendant and Appellant.




APPEAL FROM:      District Court of the First Judicial District,
                  In and for the County of Lewis & Clark,
                  The Honorable Henry Loble, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 Patrick Flaherty, Great Falls, Montana

         For Respondent:
                 Lawrence A. Murphy, Helena, Montana


                                                              --
                                 Submitted on Briefs:    June 28, 1984
                                              Decided: P o e i b r 13, 1984
                                                        Jvrle



Filed:   @OV i d lgsq



                                 Clerk
Mr.    J u s t i c e Fred J . Weber d e l i v e r e d t h e Opinion o f t h e C o u r t .

          P l a i n t i f f s f i l e d s u i t f o r a judgment q u i e t i n g t i t l e i n

p l a i n t i f f s t o t h e mineral i n t e r e s t s i n c e r t a i n r e a l property,

money       damages         and    an    order       restraining           defendant          from

e n t e r i n g upon       the property       i n the      future.          Following         jury

t r i a l , judgment i n t h e sum o f $7,050, p l u s i n t e r e s t and c o s t s

was     entered         for    plaintiffs.          Defendant          appeals        from      the

judgment         and       from    the     District        Court's         denial        of     his

p r e - t r i a l motion f o r summary judgment.                  W affirm.
                                                                   e

          On March 1 2 , 1979, p l a i n t i f f s f i l e d a c o m p l a i n t a l l e g -

i n g t h a t t h e y were t h e l e g a l owners o f a p l a c e r mining c l a i m

i n L e w i s and C l a r k County,          commonly known a s t h e Con K e l l y

Claim No.          1.      P l a i n t i f f s alleged. t h a t defendant unlawfully

e n t e r e d t h e Con Kel-ly on o r a b o u t May 2 3 , 1978, u n s u c c e s s f u l -

l y a t t e m p t e d t o l o c a t e a q u a r t z l o d e , a n d , by u s e o f t h r e a t s

and f i r e a r m s , p r e v e n t e d p l a i n t i . f f s from e n t e r i n g upon t h e i r

claim.            Plaintiffs         alleged       money        damages         of     $25,000,

r e q u e s t e d $50,000       i n p u n i t i v e damages,      sought a r e s t r a i n i n g

o r d e r p r o h i b i t i n g d e f e n d a n t from e n t e r i n g upon t h e i r c l a i m

and a d e c l a r a t o r y judgment q u i e t i n g t i t l e t o t h e Con K e l l y i n

plaintiffs.

          Defendant answered t h e c o m p l a i n t              pro -
                                                                      se,      denying each

of p l a i n t i f f s '   allegations.         Defendant a s s e r t e d t h a t p l a i n -

t i f f s were n o t t h e l e g a l owners o f t h e p r o p e r t y and t h a t he

was on t h e p r o p e r t y w i t h t h e o w n e r ' s p e r m i s s i o n .       Defendant

counterclaimed                against     plaintiffs           and      their        attorney,

alleging t h a t plaintiffs'              a t t o r n e y had r e p r e s e n t e d d e f e n d a n t

i n another case.

          The D i s t r i c t C o u r t o r d e r e d t r i a l    set     f o r January         7,

1 9 8 1 , w i t h d i s c o v e r y t o be completed and a proposed p r e - t r i a l

o r d e r t o be        f i l e d i n December      1980.         A proposed p r e - t r i a l
o r d e r , s i g n e d by p l a . i n t i f f s l c o u n s e l and d e f e n d a n t was f i l e d

on December 2 2 ,                1980.         The proposed o r d e r s t a t e d t h a t t h e r e

w e r e no a g r e e d f a c t s i n t h i s c a s e and i d e n t i f i e d t e n i s s u e s
for t r i a l .

          Defendant              appeared          pro     se     and           filed     a     motion       to

disqualify plaintiffs'                         c o u n s e l on J a n u a r y 7.             The D i s t r i c t

Court      vacated            the     January         7,    1981 t r i a l         date.          Prior      to

s e t t i n g a new t r i a l d a t e , t h e c o u r t h e l d h e a r i n g s on v a r i o u s

motions        and       a     show c a u s e        hearinq       on       a    restraining order.

          On September                28,       1983,      plaintiffs            filed a         notice      of

readiness            for         pre-trial            conference.                   Defendant           filed

objections,          c l a i m i n g d i s c o v e r y was n o t complete and f u r t h e r

p l e a d i n g s would be forthcoming.                         The D i s t r i c t C o u r t s e t t h e

c a s e f o r j u r y t r i a l on F e b r u a r y 1 4 , 1984.                     The c o u r t o r d e r e d

an a t t o r n e y s '       c o n f e r e n c e and a l l p r e - t r i a l       motions f i l e d by

J a n u a r y 1 3 , 1984.

          On      January           9,      1984,       defendant           filed        a     motion      for

summary judgment,                   judgment on t h e p l e a d i n g s and d i s m i s s a l o f

the    complaint              for     failure        to     state       a       claim.         Plaintiffs'

counsel        and t h e         defendant,           acting       pro E,            appeared a t t h e

h e a r i n g on t h e motion.                    The c o u r t      reserved            ruling       on t h e

motion.

          O F e b r u a r y 8, 1984, a h e a r i n g was conducted on d e f e n -
           n

dant's      motion            for     summary        judgment,          plaintiffs'              motion      to

compel         answers               to         plaintiffs'             interrogatories,                   and

plaintiffs'              motion           to     dismiss        defendant's              counterclaim.

A f t e r h e a r i n g argument from b o t h p a r t i e s and c o n s i d e r i n g t h e

record,        the       District           Court       denied       d e f e n d a n t ' s motion          for

summary judgment.
      The case was tried before a jury as scheduled on Febru-
ary 14, 1984.     The jury returned a verdict against defendant
for $7,050 in damages, plus interest and costs.
      Defendant's counsel filed a timely notice of appeal of
(1) the jury's final judgment against defendant, and (2) the
District Court's denial of defendant's motion for summary
judgment.


      No transcript of the trial has been. filed.           In his
opening brief to this Court, defendant's counsel states that
" [allthough the Defendant has grounds to contest this
verdict, he is without the funds to justify a transcription
of the record."     He asserts that the sole issue on appeal is
whether the District Court erred in denying his motion for
summary juc?gment.    He further asserts that this Court should
not be influenced by the jury verdict against defendant,
since the appellate court's standard of review restricts it
to the state of the pleadings on the day prior to the hearing
on the motion.
      Rule 9 (b), M.R.App.Civ.P.,    provides in pertinent part:
            ". . . Within 10 days after filing the
            notice of appeal the appellant shall
            order from the reporter a transcript of
            such parts of the proceedings not already
            on file as he deems necessary for inclu-
            sion in the record. In all cases where
            the appellant intends to urge the insuf-
            ficiency of the evidence to support the
            verdict, order or judgment in the
            district court, it shall be the duty of
            the appellant to order the entire tran-
            script of the evidence.       . . ."
In order for this Court to have a basis upon which to review
the   sufficiency    of   evidence   to   support   a   verdict,   a
transcript is necessary.      Rule 9 (b), M.R.App.Civ.P.    imposes
an absolute duty upon the appellant to provide this Court
with a transcript of the entire trial if sufficiency of the
evidence is an issue on appeal.
     We     hold    that   defendant's   challenge    to     the    final
jud.gment cannot be reviewed on appeal in the absence of a
transcript.




      Rule 56 (b), M.R.Civ. P. permits a defendant to move for
a summary judgment in his favor at any time with or without
supporting affidavits.        Rule 56 (c), M.R.Civ.P.      provides in
pertinent part:
           ". . .The judgment sought shall be rendered
       forthwith if the pleadings, depositions, answers to
       interrogatories, and admissions on file, together
       with the affidavits, if any, show that there is no
       genuine issue as to any material fact and that the
       moving party is entitled to a judgment as a matter
       oflaw.       . . ."
      Summary judgments serve the purpose of judicial economy
where there is no genuine issue of material fact.              As this
Court stated in Cereck v. Albertson's Inc. (1981), 195 Mont.


       "The purpose of the summary judgment procedure is
       to encoura.ge judicial economy by el-iminating
       unnecessary trials, and it is proper under Rule
       56(c), M.R.Civ.P., only when there is no genuine
       issue of material fact and the moving party is
       entitled to a judgment as a matter of law.                  ...
       "It is well established that a party moving for
       summary judgment has the burden of showing a
       complete absence of any genuine issue as to all
       facts deemed material in light of the substantive
       principles that entitle that party to a judgment as
       a matter of law.         ...
                                All reasonable inferences
       that may be drawn from the offered proof are to be
       drawn in favor of the party opposing the summary
       judgment." (citations omitted)
      Here, the District Court concluded there were issues of
material    fact.     A    hearing was   held   on   March    8, 1983,
approximately 10 months prior to the motion                          for summary
judgment.         The court's minute entry from that date states:
           "This was the time set for hearing on the
           defendant's motion to dismiss.       . Present in   .
           Court were plaintiffs and their counsel, Lawrence
           Murphy, Dick Holzworth, acting pro se.          Mr.
           Holzworth offered argument favoring dismissal of
           the case.     Mr. Lawrence Murphy replied.      The
           parties agreed the mineral interest in the property
           is owned by both plaintiffs Lutzenhiser and
           Russell, the-only issue - -to be decided - -
                                    left -              is the
           question o-f damaaes * la in tiffs claim defendant
            .
            a

           inflicted - property.
                      on
                                     a

                                                . . ."
                                              (emphasis added)
       The District Court there concluded that the issue that
remained for determination was the amount of property damage
caused by the defendant.               In addition, prior to entry of the
order denying summary judgment, the defendant submitted a
proposed        pre-trial      order     in   which   he     identified     three
specific issues of             fact for trial.           At that point, the
voluminous court fj-le, with its numerous pre-trial motions
and   papers       on extraneous matters, did               identify      specific
issues of fact for determination.
       We       hold     that the defendant has            failed    to   show an
absence of genuine issues of material fact and that he was
entitled to         judgment as a matter of law.                    The District
Court's         denial    of   the     motion   for   summary       judgment   is
affirmed.



We concur:
