                                            No. 97-089

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                               1997



BALYEAT LAW, P.C., as trustee,

               Plaintiff and Respondent,

          v.

KEVIN J. PETRI and PATSY A. PETRI,
&a BRANDY PETRI,

               Defendants and Appellants.




APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and for the County of Missoula,
                      The Honorable Jack L. Green, Judge presiding



COUNSEL OF RECORD:

               For Appellant:

                      Bryan Charles Tipp, Raymond P. Tipp, Tipp & Buley, Missoula, Montana

               For Respondent:

                      Regan Whitworth, H. John Balyeat, Balyeat Lax+ Offices, Missoula, Montana
     .'

                                                         Subrnttted on Briefs: November 6 , 1997




                                             Clerk
Justice James C. Nelson delivered the Opinion of the Court.


       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of rts

result to State Reporter Publishing Company and West Group.

       Kevin and Patsy Petri appeal from an order of the Fourth Judicial District Court,

Missoula County. dated August 21, 1989, granting summary judgment to Balyeat Law

Office, P.C., as trustee for Browning Ferris Industries, Community Medical Center and

various creditors (Balyeat) and against the Petris in the sum of $4,414.82, including costs,

accruing costs and interest in the amount of 10% per annum. We re\-erse and remand as to

Kevin; we dismiss Patsy's appeal with prejudice.

                                        Background

       On January 31, 1989, Balyeat filed its complaint against the Petris requesting damages

and costs in an action on an open account and in connection with the Petris' issuance of an

NSF check. Balyeat also prayed for certain other statutory damages in connection % ~ t the
                                                                                       h

underlying claims and for costs and interest. Patsy Petri (Patsy) was served w ~ t h copy of
                                                                                   a

the complaint and a summons on February 3, 1989; Kevin Petri (Kevin) was served with a

copy of the complaint and summons on Februav 9, 1989. Patsy did not appear; Kevin

appeared by counsel on March 13, 1989. and filed a motion to dismiss. The record indrcates

that the District Court denied his motion to dismiss on March 23, 1989. Kevin filed his

                                              2
answer on April 13, 1989, denying the substantive allegations in Balyeat's complaint.

       On July 14, 1989, Balyeat filed a motion for summary judgment with a supporting

brief. Attachments to the brief included affidavits, statements of account and various

documents supporting the motion and Balyeat's claims. The certificate of mailing on the

motion for summary judgment and supporting brtef states that copies were served by mail

on all parties or their counsel of record. postage prepaid. The record reflects that Kevin did

not oppose the motion for summary judgment with objections or affidavits; he simply did not

appear.

       As indicated above, on August 21, 1989, without a hearing, the Hon. Jack L. Green

entered judgment against Kevin and Patsy for the sums demanded in the complaint, plus

costs and interest. Balyeat did not file and serve the notice of entry of judgment until

December 2,1996. The Petris thereafter filed a notice of appeal on December 16, 1996, and

an amended notice of appeal on January 2,1997, fiom the summary judgment entered by the

District Court in August 1989.

       On June 23, 1997, we remanded this case to the Fourth Judicial District Court,

Missoula County, to make findings regarding any payments made by Kevin on the judgn~eiit

including the dates and amounts of the payments made, if any. Affer a hearing on August

14, 1997, the Hon. John W. Larson entered findings of fact, conclusions of law and an order

in which he ruled that although Kevin bad made certain payments totaling $350 to Balyeat

during the period 1992 -1994, there was no basis to conclude that those payments were made
pursuant to the August 1989 judgment as Kevin was unaware that the judgment had been

entered against him. Judge Larson also found that counsel then representing Kevin was

unaware that judgment had been entered, having stated in his affidavit that he had not

received any document (including the motion and brief for summary judgment) filed after

his initial appearance on March 3, 1989. Moreover, counsel's affidavit raised a number of

other apparent irregularities in connection *ith the service of documents upon him.

                                         Discussion

       On appeal, the Petris contend the District Court erred in granting summary judgment

against them without first setting or holding a hearing on the motion for summary judgment

and because the court's order fails to specie the grounds for and the rationale underlying the

ruling. The Petris argue that the issue presented here was settled by this Court's decision in

Cole v. Flathead County (1989), 236 Mont. 4 12,771 P.2d 97. In            we held that unless

the right to hearing on a Rule 56, M.R.Civ.P., (summary judgment) motion is spectfically

waived by all parties (and not waived simply by the failure to file briefs), either the movant

or the adverse party is entitled to a hearing under Rule 56, in the ordinary ease.   m,771
P.2d at 101. We agree eith this argument as to Kevin, but we disagree as to Patsy.

       Our decision in Q is directly on point. Since Kevin had entered his appearance in
                        &

this ease denying liability for the damages claimed in Balyeat's complaint and since he had

not waived a hearing on Balyeat's summary judgment motion, he was entttled to bc heard

before summary judgment was granted. Moreover, the District Judge then presiding should
have specified the grounds and his rationale for granting Balyeat's summary judgment

motion. Rule 52(a), M.R.Civ.P. The court committed reversible error in not setting the

summary judgment motion for hearing and in not complying with Rule 52(a).

       Balyeat argues that Kevin's appeal is bmed by estoppel or laches. We disagree.

Balyeat did not serve notice of entry ofjudgment on Kevin until December 2, 1996. Since

he had appeared, Kevin was entitled to notice of entry ofjudgment (Rule 77(d), M.R.Civ.P.),

and his appeal time did not commence until notice of entry of judgment was served upon

him. Marriage of Robertson (1989), 237 Mont. 406,411,773 P.2d 1213,1216. Once served

with notice of entry ofjudgment, Kevin thereafter appealed within the time limits specified

by Rule 5(a)(l), M.R.App.P. While Balyeat argues that the equitable doctrine of laches

should bar Kevin from his appeal, we are not cited to any case authority wherein this Court

has applied that doctrine to bar the filing of an otherwise timely notice of appeal. Whether

some future case might present such a fact situation, we are satisfied that this is not the case.

Similarly, we are not persuaded by Balyeat's argument that Kevin should be estopped from

his appeal because he had made payments on the judgment and knew of the judgment being

entered against him. The short answer to both of Balyeat's arguments is that Judge Larson

found that neither Kevin nor his counsel were aware that the motion for summary judgment

had been filed and granted nor did Kevin make any payments on the judgment once it was

entered.

       As to Patsy, wc agree with Balyeat that her appeal is time-barred. Since she failed to
appear in the lawsuit after having been served with the summons and complaint, Patsy was

not entitled to notice of service of Balyeat's motion for summary judgment. Rule 5(a),

M.R.Civ.P. ("[nlo service need be made on parties in default for failure to appear. . . .").

Moreover, and for the same reason, she was not entitled to notice of cnhy of judgment once

summary judgment was entered against her. Rule 77(d), M.R.Civ.P. Patsy's appeal time

clearly ran out 30 days after entry of the order for summary judgment on August 21, 1989.

Rule 5(a)(l), M.R.App.P. Accordingly, her appeal has long since been time-barred and the

issues she raises will not be considered further.

       As to Kevin, we reverse the court's order granting summary judgment, and we remand

for further proceedings. As to Patsy, we dismiss her appeal with pr9udice.




We Concur:
Justice W. William Leaphart, dissenting.


       I dissent. The Court cites Cole v. Flathead County (1989), 236 Mont. 412, 771 P.2d

97, for the proposition that unless the right to a hearing on a Rule 56 summary judgment

motion is specifically waived by all parties, either the movant or the adverse party is entitled

to a hearing in the ordinary case. However, we also stated in Q& that there may be

situations where the movant would be so clearly entitled as a matter of law to a summary

judgment that the district court might, by order, dispense with the necessity of a hearing.

m,771 P.2d at 101. In light of the state of the record in this case, including the various
attachments to Balyeat's brief in support of the motion for summary judgment, I conclude

with regard to Kevin Petri, that this is such a case. While it would have been preferable for

the District Court to hold a hearing and support its order for summary judgment with findings

of fact and a rationale, the court did not commit reversible error in entering summary

judgment for the relief demanded in the complaint on the basis of the affidavits and

documents it had before it, particularly *here neither of the parties provided any evidence

or affidavits in opposition to the summary judgment motion. I would affirm as to Kevin Petri

and dismiss Patsy's appeal with prejudice.




Justice William E. Hunt, Sr., and Justice Terry N. Trieweiler join in the foregoing dissent.
j                                          December 18, 1997


                                      CERTIFICATE OF SERVICE

    I hereby certify that the following certified order was sent by United States mail, prepaid, to the
    following named:
    RAYMOND P. TIPP
    TIPP & BULEY
    PO BOX 3778
    MISSOULA MT 59806-3778

    H. JOHN BALYEAT 62 REGAN WHITWORTH
    BALYEAT LAW OFFICES
    704 WEST SUSSEX
    MISSOULA MT 59801



                                                         ED SMITH
                                                         CLERK OF THE SUPREME COURT
                                                         STATE OF MONTANA
