                                                                                         January 3 2012


                                         DA 11-0434

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 2N



RONALD SAXON,

              Plaintiff and Appellant,

         v.

PHYLLIS SAXON,

              Defendant and Appellee.


APPEAL FROM:          District Court of the Fifth Judicial District,
                      In and For the County of Madison, Cause No. DV 2010-0087
                      Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Ronald Saxon (self-represented litigant); Bozeman, Montana

               For Appellee:

                      Victor N. Bunitsky, Attorney at Law; Virginia City, Montana



                                                  Submitted on Briefs: December 14, 2011

                                                              Decided: January 3, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     In May, 2010, Ronald Saxon filed an action against his sister Phyllis Saxon in

Justice Court in Madison County, Montana, alleging that she had sold him a truck “that

wasn’t hers.” After a hearing the Justice Court entered judgment for Phyllis and in

October, 2010, Ronald appealed to the Fifth Judicial District Court. Phyllis moved for

summary judgment, supplying affidavits that demonstrated that Sandra Iverson was the

owner of the truck; that Ronald had contracted with Iverson to buy the truck; and that at

all pertinent times Ronald knew that his contract to buy the truck was with Iverson and

not with Phyllis. The District Court found that Ronald “utterly failed to address these

facts” and failed to meet his burden to respond to the motion for summary judgment by

showing that there were genuine issues of material fact. The District Court therefore

concluded that Phyllis was entitled to summary judgment.

¶3     Upon Phyllis’ motion the District Court also struck Ronald’s document filed in

opposition to summary judgment because of its reliance upon “redundant, immaterial and

impertinent matters, and the fact that his comments regarding Phyllis’ sexual orientation

were wholly inappropriate.” Further, the District Court applied the standard of Foy v.


                                             2
Anderson, 176 Mont. 507, 580 P.2d 114 (1978), to determine that Phyllis was entitled to

attorney fees for having to hire counsel to defend a frivolous lawsuit.

¶4     It is clear from the record that Phyllis submitted affidavits demonstrating that she

had no contract with Ronald regarding the truck, and that any contract was with Iverson.

It is also clear from the record that Ronald failed to produce any affidavits or admissible

evidence to show that there was any genuine dispute on the essential fact of the identity

of the contracting parties.

¶5     Our de novo review of the record demonstrates that the District Court applied the

proper legal standard in M. R. Civ. P. 56 and properly granted summary judgment to

Phyllis. It is manifest from the record that the District Court applied the proper standard

and did not abuse its discretion in awarding attorney fees to Phyllis. We find no reason in

fact or law to disturb the District Court’s order.

¶6     Affirmed.


                                                     /S/ MIKE McGRATH


We concur:


/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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