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                                                                 No. 98-472



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 124N




GOETZ, GALLIK, BALDWIN & DOLAN, P.C.,



Plaintiff and Respondent,



v.



THOMAS M. MALEE,



Defendant and Appellant.




APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Wm. Nels Swandal, Judge presiding.


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COUNSEL OF RECORD:



For Appellant:



Thomas M. Malee, Attorney at Law; Billings, Montana



For Respondent:



Robert K. Baldwin; Goetz, Gallik, Baldwin & Dolan, P.C.;

Bozeman, Montana




                                                                                                Submitted on Briefs: January 21, 1999



                                                                                                                  Decided: June 3, 1999

Filed:




__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.


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¶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. Attorney James Goetz successfully represented Attorney Thomas M. Malee in a
contempt proceeding before the Montana Supreme Court. Subsequent to the
contempt proceeding, Goetz filed this action against Malee because Malee refused to
pay Goetz for his services. Malee asserted two affirmative defenses: (1) that Goetz
grossly overcharged him; and (2) that Goetz was negligent in failing to seek fees from
the Montana Supreme Court. Malee also filed a counterclaim to collect the retainer
fee he paid Goetz. The Eighteenth Judicial District Court, Gallatin County, dismissed
Malee's counterclaim and his second affirmative defense. The District Court then
granted Goetz summary judgment on his claim that Malee should pay Goetz's fees
for services. Malee appeals.

¶3. The dispositive issues in this case are the following:

¶4. 1. Did the District Court abuse its discretion when it granted Goetz leave to file a
motion for summary judgment?

¶5. 2. Did the District Court err when it granted summary judgment in Goetz's
favor?

¶6. In his brief, Malee asks us to consider whether the Montana Supreme Court is
responsible to pay Goetz's fees for services. Since we already disposed of this issue by
order on November 24, 1998, we do not consider it here.

                                                FACTUAL BACKGROUND

¶7. The day before Malee was directed to appear before the Montana Supreme Court
to defend himself in a contempt proceeding, he retained Goetz to represent him.
Goetz obtained a one-week continuance. Within the week, Goetz prepared and
submitted a memorandum to the Court. Then, on April 18, 1996, Goetz successfully
argued before the Court on Malee's behalf.

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¶8. Malee, thereafter, refused to pay Goetz's fees for services. Despite a letter in
which Malee agreed with the terms of Goetz's applicable hourly rates, Malee refuted
Goetz's fees based on the amount of time Goetz spent on the case.

¶9. On June 23, 1997, Goetz filed a complaint against Malee in the Eighteenth
Judicial District Court, Gallatin County. Malee filed two affirmative defenses in
response to the complaint: The first alleged that Goetz overcharged him; the second,
that Goetz was negligent in failing to seek fees from the Montana Supreme Court
based on a Montana law that allows the courts to make a party whole. Malee also
filed a counterclaim to collect the retainer fee he already paid Goetz.

¶10. On November 5, 1997, the District Court dismissed Malee's counterclaim and
second affirmative defense with prejudice, pursuant to Rule 12(c), M.R.Civ.P. The
District Court determined that Malee had no legal basis to support his argument that
the Montana Supreme Court should pay Goetz's fees.

¶11. Thereafter, there was some confusion concerning Malee's request for a jury
trial. The record shows that Goetz did not request a jury trial in his complaint, nor
did Malee in his answer and counterclaim, which originally was submitted to the
Clerk of the District Court by fax. However, in a hard copy of the answer and
counterclaim, which followed by mail, Malee added the words "JURY TRIAL
REQUESTED" at the end of the last page of the pleading. After Goetz briefed the
issue of whether a jury trial should be scheduled, in which he admitted that he
overlooked Malee's jury trial request, the District Court entered a jury trial
preparation order on April 8, 1998, and amended it on April 13, 1998.

¶12. Following this, Goetz submitted a motion for leave to file a motion for summary
judgment. On April 28, 1998, the District Court granted Goetz's motion for leave,
even though the deadline for motion filing was January 23, 1998. Also on April 28,
1998, Goetz filed his motion.

¶13. On May 22, 1998, the District Court granted summary judgment in Goetz's
favor. Malee appeals both the District Court's grant of leave and its grant of
summary judgment.

                                                  STANDARD OF REVIEW


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¶14. Our standard of review of discretionary trial court rulings is an abuse of
discretion standard. See May v. First Nat'l Pawn Brokers, Ltd. (1995), 270 Mont. 132,
134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860
P.2d 121, 125,

we held that "[t]he standard of abuse of discretion is applied to discretionary rulings,
such as trial administration issues, post-trial motions and similar rulings."

¶15. We will review an appeal from a summary judgment de novo based on the same
criteria applied by the district court. See Stutzman v. Safeco Ins. Co. (1997), 284
Mont. 372, 376, 945 P.2d 32, 34 (citing Treichel v. State Farm Mut. Auto. Ins. Co.
(1997), 280 Mont. 443, 446, 930 P.2d 661, 663). Thus,

[t]he movant must demonstrate that no genuine issues of material fact exist. Once this has
been accomplished, the burden then shifts to the non-moving party to prove by more than
mere denial and speculation that a genuine issue does exist. Having determined that
genuine issues of material fact do not exist, the court must then determine whether the
moving party is entitled to judgment as a matter of law. [This Court] reviews the legal
determination made by a district court as to whether the court erred.


Stutzman, 284 Mont. at 376, 945 P.2d at 34 (quoting Bruner v. Yellowstone County (1995),
272 Mont. 261, 264-65, 900 P.2d 901, 903).

                                                                 ISSUE 1

¶16. Did the District Court abuse its discretion when it granted Goetz leave to file a
motion for summary judgment?

¶17. As we noted above, Goetz filed his motion for summary judgment after the
deadline for filing motions had passed. Malee argues that the District Court should
not have permitted this because Rule 6(b), M.R.Civ.P., requires a showing of
excusable neglect or good cause before an extension of time can be granted.
Furthermore, § 25-1-301, MCA, limits an extension of time to ninety days. Malee
asserts that Goetz filed his summary judgment motion more than ninety days after
the deadline.


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¶18. First, we consider whether the District Court abused its discretion when it found
good cause to grant Goetz leave under Rule 6(b), M.R.Civ.P. This rule states:

When by these rules or by a notice given thereunder or by order of court an act is required
or allowed to be done at or within a specified time, the court for cause shown may at any
time in its discretion . . . upon motion made after the expiration of the specified period
permit the act to be done where the failure to act was the result of excusable neglect.


Rule 6(b), M.R.Civ.P.

¶19. Goetz explained that he did not file a summary judgment motion before the
motion deadline because, based on the facsimile copy of Malee's answer and
counterclaim, he believed there was going to be a bench trial, which was just as
efficient a means to resolve his case as to resolve it by summary judgment motion. He
admits that he overlooked Malee's request for a jury trial in the hard copy of the
answer and counterclaim that followed.

¶20. It appears that the District Court, itself, overlooked Malee's request. It also
appears that once the question of Malee's jury trial request was resolved, Goetz
quickly filed a motion for leave to proceed in the most efficient way he thought
possible, through a motion for summary judgment. On this basis, we conclude that
the District Court properly exercised its discretion when it allowed Goetz to file the
motion for summary judgment.

¶21. We next consider § 25-1-301, MCA, which states:

Subject to Rule 6(b), M.R.Civ.P., whenever this code requires or allows an act to be done
at or within a specified time, which act relates to the pleadings in the action, the
undertakings to be filed, the justification of sureties, the preparation of statements or of
amendments thereto, or the service of notices other than of appeal, the time allowed by
this code may be extended, upon good cause shown, by the court in which the action is
pending or a judge thereof; but such extension shall not exceed 90 days without the
consent of the adverse party.


¶22. Goetz argues that since this statute applies to pleadings, not motions, it does not

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apply here. See, e.g., Rules 7(a) and 7(b), M.R.Civ.P. We agree.

¶23. Also, we are not persuaded by Malee's interpretation of the phrase, "relates to
the pleadings," found in § 25-1-301, MCA. Malee argues that § 25-1-301, MCA,
applies to all acts which relate to the pleadings, including a motion for summary
judgment which can have the effect of dismissing a pleading. However, we disagree
with his argument because there are other rules that are more specific to motions for
summary judgment that do not comport with Malee's interpretation of § 25-1-301,
MCA. Rule 56(a), M.R.Civ.P., for example, specifically allows a party to file a motion
for summary judgment "at any time after the expiration of 20 days from the
commencement of the action." Also, Rules 7(a) and 7(b), M.R.Civ.P., distinguish a
motion from a pleading. Therefore, we conclude that the scope of § 25-1-301, MCA,
must be limited to pleadings and does not apply to summary judgment motions.

¶24. Thus, we conclude that the District Court did not abuse its discretion when it
granted Goetz leave to file a motion for summary judgment.

                                                                 ISSUE 2

¶25. Did the District Court err when it granted summary judgment in Goetz's favor?

¶26. Malee argues that the District Court should not have granted Goetz summary
judgment because there is a genuine issue of material fact as to whether Goetz's fees
for services were appropriate.

¶27. On appeal, we review the affidavits filed by both parties to determine whether a
genuine issue of material fact exists. Goetz states in his affidavit that his bill for
services is accurate. Malee states in his affidavit that the number of hours Goetz
claims he worked on the case is excessive. In a summary judgment proceeding, Malee
has a burden to prove by more than mere denial and speculation that a genuine issue
of material fact exists. See, e.g., Stutzman, 284 Mont. at 376, 945 P.2d at 34 (quoting
Bruner, 272 Mont. at 264-65, 900 P.2d at 903). We conclude that Malee failed to meet
this burden.

¶28. The District Court determined that the issues Malee raised were speculative,
conclusory, or simply inaccurate. We agree. The record establishes that Malee failed
to support his allegations that the time Goetz worked on the case was excessive. For


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example, Malee argues that Goetz should have charged him for forty minutes,
instead of sixty minutes, for a forty-minute hearing at the Montana Supreme Court.
However, as the District Court recognized, Malee's argument does not allow for the
reasonable time it took Goetz to arrive at and leave the courtroom. Malee contends
that Goetz overcharged him in a billing entry of 1.75 hours for a thirty-minute
conference. However, Malee provides no meaningful response to Goetz's explanation
that the 1.75 billing entry included the time Goetz spent preparing for the case that
day. Malee also contends that Goetz should not have included in his bill the time he
spent on their initial telephone conversation or on any work he performed before
April 15, 1996, the date Goetz instructed Malee that he could start working on the
case. Nonetheless, Malee does not dispute that Goetz legitimately spent this time
working on the case. Malee further argues that Goetz's final bill was greater than the
original estimate of $3000. However, to sustain this argument, Malee necessarily
would have to present testimony that is clearly inadmissible under the parol evidence
rule. Even if the testimony were admissible, it would only establish that the $3000
was an estimate, not a ceiling fee. Thus, we conclude that the District Court properly
granted Goetz's motion for summary judgment.

¶29. For these reasons, we affirm the District Court. We also remand for an award of
fees and costs, pursuant to our order dated November 24, 1998. Goetz seeks
additional fees and costs pursuant to Rule 32, M.R.App.P., and § 37-61-421, MCA, in
connection with this appeal. We decline to award any additional fees and costs.

¶30. Affirmed.


/S/ JIM REGNIER




We Concur:


/S/ J. A. TURNAGE

/S/ TERRY N. TRIEWEILER

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/S/ KARLA M. GRAY

/S/ JAMES C. NELSON




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